Reprint as at 18 October 2016

Coat of Arms of New Zealand

Child Support Act 1991

Public Act
 
1991 No 142
Date of assent
 
18 December 1991
Commencement
 
see section 1(3), (4)
Note

Changes authorised by subpart 2 of Part 2 of the Legislation Act 2012 have been made in this official reprint.

Note 4 at the end of this reprint provides a list of the amendments incorporated.

This Act is administered by the Inland Revenue Department.

Contents

Title [Repealed]
1Title and commencement
2Interpretation
3Act to bind the Crown
3AApplication, transitional, and savings provisions relating to amendments to this Act
4Objects
4AOverview of child support payable under formula assessment
5Children who qualify for child support
6Parents by whom child support payable
7Meaning of parent
7ACommissioner may disregard document from overseas jurisdiction if not satisfied that document is valid and authentic
7BAssumptions about parents of child
8Who may apply for formula assessment
9Social security beneficiaries must apply for formula assessment
10Form of application
[Repealed]
11Multiple applications in single form
12Deemed application by beneficiary
13Notification by Commissioner of application
13ACases where formula assessment to be refused
14Commissioner to establish proportions of care
15How Commissioner establishes proportions of care
16Determining care cost percentages
17Determining who are liable parents and receiving carers
[Repealed]
18Effect of being liable parent or receiving carer
19When liability to pay child support starts
20Suspension of voluntary agreements [Repealed]
[Repealed]
21Duty to give notice of decision to unsuccessful applicant [Repealed]
22Duty to give notice of decision to custodian [Repealed]
23Duty to give notice to person from whom child support sought [Repealed]
24Duty to make assessment [Repealed]
25When liability to pay child support ceases
26Miscellaneous provisions relating to death of carer
27Election by receiving carer to end formula assessment
28This Part sets out rates of child support
29Commissioner to assess child support payable under formula assessment
30Formula for assessing annual amount of child support
31Annual amount of child support payable by liable parent
[Repealed]
32Minimum annual rate of child support
33Income percentage
34Child support income amount
35Adjusted taxable income
35ALiving allowance
35BDependent child allowance
36Multi-group allowance
36AWhere parent is sole receiving carer
36BWhere no receiving carers are parents
36CWhere 1 receiving carer is parent and other is non-parent
36DChild expenditure tables
37Nil assessment of taxable income [Repealed]
38Application of assessments under Income Tax Act 1976 or Tax Administration Act 1994
38APosition where taxable income from withholding income not available for full tax year [Repealed]
39Position where taxable income not readily ascertainable
39ACommissioner may take overseas income into account
40AAInterpretation for purposes of sections 40 to 45
[Repealed]
40Estimated taxable income
41Effect of election
42Revocation of election and subsequent elections
43Effect of revocation of election
44End-of-year reconciliation
44ADetermining income amount if no tax return filed
[Repealed]
45Penalty if estimated income less than 80% of actual income [Repealed]
46Interest to be charged on underestimations [Repealed]
47Application of this Part
48Voluntary agreements that qualify for acceptance
49Minimum instalment required before agreement can be accepted
50Exception where payee is social security beneficiary
51Exception in respect of child support voluntary agreement where formula assessment applies
52Exception in respect of spousal voluntary agreement where court order in force
53Dual-purpose voluntary agreements
54Act not to affect other provisions of agreement
55Application requirements
56Dual applications
57Decision on application
58Consequences of Commissioner accepting voluntary agreement
59Commencement of liability under voluntary agreement
60Duty to give notice of decision
61Duty to make assessment
62When payments under voluntary agreement cease to be payable
63Voluntary agreement may be varied
64Election to terminate liability under voluntary agreement
65Child support voluntary agreement no bar to application for formula assessment
66Voluntary agreement no bar to application for maintenance order under Family Proceedings Act 1980
66ACommissioner to give effect to orders made under Property (Relationships) Act 1976
67Application of this Part
68Effect of certain court orders
69Duty to make assessment
70Election that Commissioner is not to enforce order
71Period for which money payable under this Act
72Minimum rate of child support or domestic maintenance
[Repealed]
73Application for exemption by prisoner or hospital patient [Repealed]
74Effect of election [Repealed]
75End of exemption [Repealed]
76Prisoner or hospital patient to advise Commissioner if exemption ends [Repealed]
77Assessment on basis of information supplied to Commissioner
78Assessment to relate to all children for whom child support payable [Repealed]
79Assessment to relate to whole or part of single child support year
80Assessments for part of child support year
81Notification requirements of parent
82Parents and receiving carers to advise Commissioner of changes
83Evidence relating to assessments
84Validity of assessments
85Assumptions as to future events
86Commissioner to give effect to changed circumstances
87Amendment of assessments
88Notice of assessment of formula assessment of child support
88ADetails in notices of assessments
89Notification by Commissioner to other payers and payees
89AOutline
89BDefinitions for this Part
89CExemption for long-term hospital patients
89DExemption for long-term prisoners
89EExemption for persons under 16 years
89FExemption does not apply at any time during child support year if income criteria not met at any time during relevant period
89GOther restrictions on application of exemptions
89HApplications for exemptions under this subpart
89IGrant of exemption under this subpart
89JExempted person not entitled to refund
89KCommissioner may make determinations in relation to exemptions
89LApplication for determination
89MDetermination that exemption does not apply or ceases to apply or determination confirming exemption
89NDetermination that provisions of Act relating to formula assessment of child support will be departed from
89OReasons for determination
89PCommissioner may refuse to make determination because issues too complex
89QApplication disclosing no grounds for making determination: how dealt with
89ROther party to be notified
89SProcedure for dealing with application
89TCircumstances in which representation or assistance at hearing may be approved
89USubsequent applications
89VEffect of pending applications
89WCommencement of determinations
89XRestriction on publication of reports of proceedings
89YApplication for exemption on grounds relating to sex offence
89ZGrant of exemption to victim of sex offence
89ZAExemption is void if conviction quashed or finding is reversed or set aside
89ZBCommissioner must give effect to exemption and may take changes into account
89ZCExempted person must advise Commissioner of certain matters
89ZDLiable person liable for payment of financial support for parts of child support year to which exemption does not apply
89ZEApplications by agents
90Objections to appealable decisions
91Objections to assessments
92Requirements in relation to objections
93Notice of result of objection
94Determination of objection not to affect other assessments or decisions
95Obligation to pay financial support where objection made
96Objections to which this Part does not apply
96ACommissioner may make determination
96BApplication for determination
96CMatters as to which Commissioner must be satisfied before making determination
96DDeterminations that may be made
96ERequirements for application
96FCommissioner may refuse to make determination because issues too complex
96GApplication disclosing no grounds, etc, for making determination—how dealt with
96HOther parties to be notified
96IProcedure for dealing with application
96JCircumstances in which representation or assistance at hearing may be approved
96KChild support agreements entered into before determination made
96LSubsequent applications
96MEffect of pending applications
96NSuspension of liabilities
96OCommencement of determinations
96PRestriction on publication of reports of proceedings
96QCommissioner may make determination under this Part
96RMatters that Commissioner must be satisfied of before making determination
96SCommissioner may make preliminary enquiries
96TNotice to subject parent giving chance to respond
96UWritten response by subject parent
96VDecision by Commissioner to start proceedings under this Part
96WCommissioner to notify subject parent
96XCommissioner to notify receiving carers and liable parent with rights of election under section 96Y
96YElection by receiving carer or by liable parent to become party or discontinue proceedings
96ZWritten representations by parties
96ZAProcedure for making determination
96ZBDeterminations that may be made
96ZCCommissioner may refuse to make determination because issues too complex
96ZDEffect of pending proceedings under this Part
96ZECommencement of determinations
96ZFRestriction on publication of reports of proceedings
96ZGApplication of certain provisions in Part 6A to proceedings under this Part
97Jurisdiction of courts
98Minimum liability in respect of child support
99Declarations in respect of step-parents
100Appeal by person from whom formula assessment of child support sought [Repealed]
101Appeal by unsuccessful applicant for formula assessment [Repealed]
102Appeals against decisions of Commissioner
103Appeals against assessments
103AAppeal in relation to determination or decision under subpart 3 of Part 5A
103BAppeal by respondent from determination under Part 6A
103CAppeal from determination under Part 6B
103DPowers of Family Court on appeal
103EImplementation of orders
104Application for departure from formula assessment in special circumstances
105Matters as to which court must be satisfied before making order
106Orders that may be made
106AFurther provision on orders for re-establishment costs situations if income increases
106BFurther provision on orders for offsetting of liabilities situations
107Implementation of orders
108Application for order for provision of child support in form of lump sum
109Orders for provision of child support in form of lump sum
110Relationship between lump sum orders and assessed child support
111Effect of lump sum orders on formula assessment of child support
112Discharge, suspension, revival, and variation of orders
113Power to set aside agreements
114Implementation of decision
115Pending appeal or application not to affect assessment
116Urgent maintenance orders
117Suspension orders
118General powers of court
119Cessation of orders under Act
120Appeal from decisions of courts
121Evidence on hearing of appeal against disallowance
122Social security beneficiary to be compellable witness against liable parent
123Conduct of proceedings
124Publication of reports of proceedings
125Intervention in proceedings
126Copies of orders to be forwarded to Commissioner
127Orders by consent
128Debt due to the Crown
129Right to choose voluntary automatic deductions or other payment method
130Defaulters to pay child support by automatic deduction
131Social security beneficiaries to pay financial support by automatic deduction
132Due date for payment of financial support
133Alteration to first due date where notice of assessment issued
134Penalties for late payment of financial support debts
134AStatus of penalties under section 134
134BAct’s provisions on liable person’s financial support debt also apply to payees’ debts arising from overpayments
135Interpretation for purposes of sections 135AA to 135O
135AANon-compliance without reasonable cause with previous payment agreements
135AApplication of sections 135B to 135GA
135BDiscretionary relief if reasonable cause
135CDiscretionary relief if failure of another person to make deduction
135DDiscretionary relief if honest oversight by liable person with no history of default
135EDiscretionary relief if error made by Department
135FDiscretionary relief if debt waived or uplifted
135FADiscretionary relief from incremental penalties unpaid before agreement entered into on or after 1 April 2016
135GDiscretionary relief from payment of incremental penalties
135GADiscretionary relief for residual penalty-only debt
135GBRelief from initial late payment penalty if full or substantial compliance with payment arrangement entered into or made on or after 1 April 2016 and within 3-month period
135HRelief from initial late payment penalty if full compliance with payment arrangement entered into or made before 1 April 2016 and within 3-month period
135IRelief from initial late payment penalty if minimum amount
135JRelief from incremental penalties unpaid before agreement entered into on or after 26 September 2006
135JARelief from incremental penalties unpaid before deduction plan made on or after 1 April 2016
135KRelief from incremental penalties in relation to arrangements entered into or made before 26 September 2006
135LWriting-off of incremental penalties if non-compliance with arrangement
135MRelief from ongoing incremental penalties if payment agreement in force
135NRelief from ongoing incremental penalties if deduction notice in force
135ORefunds paid out of Crown Bank Account without further appropriation
136Amounts payable per month and per day
137Order in which payments to be applied by Commissioner
138Apportionment of payment between payees
139Establishment of Child Support Trust Bank Account
140Payments into, and out of, Child Support Trust Bank Account
141Payment to receiving carers who are not social welfare beneficiaries
142Payment of formula assessment child support to receiving carers who are social security beneficiaries
143Payment of voluntary agreement child support to receiving carers who are social security beneficiaries
144Payment of lump sum and other child support
145Payment to spouses or other partners
146Time at which payments are to be made
147Unremitted deductions made by employers or PAYE intermediaries
148Method by which payments to be made
149Unexplained remittances
150Time at which unexplained remittances deemed to be received
151Overpayments to payees before 1 April 2016
151AAOverpayments to payees on or after 1 April 2016
151ARelief where child support overpaid before estimation [Repealed]
152Relief in cases of serious hardship
152ARelief in case of exemption granted to liable person
152B Offsetting child support payments
153Interpretation
154Deduction notice
155Money from which deductions to be made
156Copy of deduction notice to be given to liable person
157Priority of deductions under this Act
158Life of deduction notices
159Duty of payer to make deductions from money payable
160Periodic deductions from money other than source deduction payments
161No opting out
162Authority to make deductions
163Payment of deductions to Commissioner
164Discharge of liable person’s liability to Commissioner and payer’s liability to liable person
165Protected net earnings rate
166Position where liable person has 2 or more employers
167Deductions to be held on trust
168Payer failing to make financial support deductions
169Unpaid financial support to constitute charge on payer’s property
170Payers not to disclose information
171Offence to prejudice employees because of financial support liability
172Other offences in relation to this Part
173Penalty for late deductions [Repealed]
174Write-off of late deduction penalty [Repealed]
175Application of other provisions to amounts payable under this Part
176Application of amounts paid or credited where 2 or more debts due
177Records to be kept by payer
178Mode of recovery of unpaid financial support
179Payee has no right to take action to recover financial support payments
179AWaiver of right to payment
180Payee may uplift financial support debt
180ACommissioner may write off benefit component of child support debt if receiving carer was social security beneficiary and recovery would cause serious hardship or be inefficient use of Commissioner’s resources
180BCommissioner may write off child support debt if liable person has died and his or her estate is insufficient
180CCommissioner may write off child support debt if receiving carer has died and debt is likely to be unable to be recovered
180DSections 180B and 180C to cover child support penalties
181Application of tax overpayments
182Bankruptcy
183Warrant to seize property
184Charging orders
185Charging orders on life insurance policies
186Extent to which charging orders bind the Crown
187Receiving orders
188Powers and duties of receiver
189Order for enforcement of arrears
190Power to issue summons to appear in court
191Evidence of default
192Power to summons witnesses
193Execution of warrants
194Conduct of examination
195Orders by court
196Contempt procedures
197Application of Legal Services Act 2000
198Liable person doing community work to be discharged on payment
199Arrest of liable person
200Dispositions may be restrained
201Dispositions may be set aside
202Procedure in High Court where defendant absent from New Zealand
203No limitation of action to recover financial support
204Crown Proceedings Act 1950 not affected
205Recovery of financial support paid by one person on behalf of another
206Direct payment to payee
207Amounts paid where no liability to pay exists, etc
208Offences
208AOffences by payers
209Officers and employees of corporate bodies [Repealed]
210Penalties for offences
211Proceedings must be commenced by Commissioner
212Charging document may charge several offences
213Charging document may be filed within 10 years
214Interpretation
215Adoption of reciprocal agreement with other countries
216Refund of excess financial support
216AMethod of application for refund of excess financial support paid
216BTransfer of refund
216CForm of request for transfer of refund
216DCommissioner must transfer refund
217Appropriation of refunds
218Meaning of ordinarily resident in New Zealand
219Power of Commissioner in respect of small amounts
219APower of Commissioner where small debit results from exchange rate fluctuations
220Evidentiary certificates by Commissioner
221Commissioner may appear in legal proceedings by employee of the Crown
222Proceedings not affected by vacancy or change in office of Commissioner
223Service on protected person
224Proceedings where respondent is absent from New Zealand or cannot be found
225Proceedings by or against minors
226Appointment of lawyer to represent child in proceedings
226AAppointment of lawyer to assist court
226BFees and expenses of lawyer appointed under section 226 or 226A
226COrder requiring reimbursement of costs payments
226DEnforcement of orders made under section 226C
227Vexatious proceedings
228Evidence [Repealed]
229Power of Family Court or District Court to call witnesses
230Proof of certain matters
231Standard of proof
232Costs
233Court fees
234Rules of procedure
235Regulations
236Changes in published statistics to be disregarded
237Rounding of amounts
238Applications by agents
239Notification requirements
240Secrecy
241Compensation not assignable
242Protection of administrator against certain claims
243Effect of adoption order
244Recovery of cost of maintenance of children and young persons in care
245Preferential payments
246Effect of attachment orders
247Jurisdiction of Family Courts
248Incomes wholly exempt from tax
249Interpretation of term pay-period taxpayer
250Interpretation
251Priorities
252Debts from which discharge releases bankrupt
253No liability to pay financial support under this Act until 1 July 1992
254Changes to ways in which maintenance liabilities may be enforced
255Evidence of default
256Savings in respect of outstanding liable parent contributions
257Saving in respect of assignment of accident compensation
258Saving in respect of jurisdiction of Family Courts
259Savings in respect of outstanding maintenance liabilities
260Savings in respect of assignment of accident compensation
261Automatic applications for formula assessment in respect of existing liable parent contributors
262Expiry of certain suspended child maintenance orders and agreements
263Continuation of certain other child maintenance orders and agreements
264Enforcement of Department of Social Welfare administered child maintenance orders and agreements
265Enforcement of other child maintenance orders and agreements
266Deferral of commencement of formula assessment in certain cases
267Enforcement of Department of Social Welfare administered maintenance orders and agreements
268Enforcement of other maintenance orders and agreements
268ATransitional provision for proceedings commenced before commencement of Child Support Amendment Act (No 3) 2013 but not completed
269Transfer of information during transitional period
270Beneficiaries to apply for child support from 16 March 1992
271Assessment activity under Social Security Act 1964 to cease from 16 March 1992
272Transitional date for calculating living allowance
273Transitional date for departure order and lump sum order applications
275Application of repealed provisions of Tax Administration Act 1994
276Application, transitional, and savings provisions relating to amendments to Act
Reprint notes
Title [Repealed]

Title: repealed, on 1 April 2015, by section 4 of the Child Support Amendment Act 2013 (2013 No 12).

 
1 Title and commencement

(1)

This Act is the Child Support Act 1991.

(2)

This Act is hereby declared to be one of the Inland Revenue Acts within the meaning of the Tax Administration Act 1994.

(3)

Except as provided in subsection (4) and section 253, this Act shall come into force on the day on which it receives the Royal assent.

(4)

Part 11 and Part 15 shall come into force on 1 July 1992.

Section 1 heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 1(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 1(2): substituted, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

2 Interpretation

(1)

In this Act, unless the context otherwise requires,—

adjusted taxable income has the meaning in section 35

annual amount of child support means the amount payable in a child support year by a liable parent in respect of a qualifying child

annual rate of child support means the total amount payable in a child support year by a liable parent in respect of all of his or her qualifying children

approved form, in relation to any application or other matter, means a form made available by the Commissioner for the purposes of that application or matter

assessment means an assessment of child support or domestic maintenance in accordance with this Act

bank has the meaning given to it by section 155

care cost percentage means the percentage of costs associated with providing a proportion of ongoing daily care to a child; and, in relation to a particular parent or carer of a child, is the percentage set out in column 2 of the table in Schedule 2 that reflects the proportion of ongoing daily care that the Commissioner establishes (under section 14) that the person provides to the child

care order or agreement means any of the following that are in force:

(a)

a parenting order made under section 48(1) of the Care of Children Act 2004:

(b)

an overseas parenting order as defined in section 8 of the Care of Children Act 2004:

(c)

any agreement (not being an order referred to in paragraph (a) or (b))—

(i)

that the parents and carers of a child agree to treat as binding on them; and

(ii)

that identifies the proportion of care that each parent and carer of the child will provide to the child

carer means, in relation to a child, a person (whether or not a parent) who provides ongoing daily care to the child, other than on a commercial basis

child expenditure amount has the meaning set out in section 30(2)

child expenditure table means, in relation to a child support year, the child expenditure table approved by the Commissioner under section 36D applying to that year

child support means any payment required to be made under this Act by any person towards the support of a qualifying child, whether under a formula assessment or a voluntary agreement or an order of the court

child support group, in relation to a parent who, at a particular time, has more than 1 qualifying child, means the qualifying children of that parent who all share the same other parent and in relation to whom child support for that time has been assessed or is being assessed

child support income amount has the meaning given to it by section 34

child support year means—

(a)

the period of 9 months commencing on 1 July 1992 and ending with 31 March 1993; or

(b)

the year commencing on 1 April 1993 and ending with 31 March 1994; or

(c)

any subsequent year commencing on 1 April and ending with 31 March

Commissioner means the Commissioner of Inland Revenue as defined in the Tax Administration Act 1994

domestic maintenance means any payment required to be made under this Act by any person towards the support of another person under section 58(2) or section 68(2)

employee has the same meaning as in paragraph (a) of the definition of employee in section YA 1 of the Income Tax Act 2007

employer has the same meaning as in paragraphs (a) and (b) of the definition of employer in section YA 1 of the Income Tax Act 2007

Family Court means a division of a District Court known, in accordance with section 4 of the Family Courts Act 1980, as a Family Court

financial support means—

(a)

child support payable under this Act; or

(b)

domestic maintenance payable under this Act; or

(c)

child support and domestic maintenance payable under this Act

financially independent, in relation to a person, means—

(a)

in full employment; or

(b)

in receipt of a basic grant or an independent circumstances grant under the Student Allowances Regulations 1998; or

(c)

in receipt of payments under a government-assisted scheme which the chief executive of the department for the time being responsible for the administration of the Social Security Act 1964 considers to be analogous to a benefit payable under the Social Security Act 1964; or

(d)

in receipt of a benefit (as defined in section 3 of the Social Security Act 1964) payable under that Act

formula assessment means an assessment made by the Commissioner in accordance with Parts 1 and 2

full employment, in relation to any person, means—

(a)

employment under a contract of service or apprenticeship which requires the person to work, whether on time or piece rates, not less than an average of 30 hours per week; or

(b)

self-employment of the person in any business, profession, trade, manufacture, or undertaking carried on for pecuniary profit for not less than an average of 30 hours per week; or

(c)

employment of the person for any number of hours which is regarded as full-time employment for the purposes of any award, agreement, or contract relating to that employment

income amount order means a determination under Part 5A, 6A, or 6B, or an order under Part 7, that, in relation to a person who is subject to a formula assessment, substitutes a new—

(a)

child support income amount; or

(b)

amount of taxable income or adjusted taxable income; or

(c)

annual amount of child support

income from employment has the same meaning as in paragraph (a) of the definition of that term in section YA 1 of the Income Tax Act 2007 in respect of the activities of a specified office

income percentage means, in relation to a parent of a qualifying child, that parent’s percentage of the combined child support income amounts of all the child’s parents, as determined under section 33

inflation percentage means, in relation to a child support year, the movement in the all groups index number of the New Zealand Consumers Price Index during the 12-month period that ends with 31 December before the start of the child-support year

last relevant tax year means,—

(a)

in a case where a parent’s taxable income for the most recent tax year was derived solely from withholding income, the calendar year ending in that tax year:

(b)

in any other case, the tax year immediately preceding the most recent tax year

liable parent means,—

(a)

in relation to a parent subject to a formula assessment, a parent of a qualifying child who the Commissioner determines under section 17 is a liable parent of the child; and

(b)

in relation to any other parent, a parent who is liable to pay child support under section 58(1) or 68(1)

liable person means a person who is liable to pay financial support under this Act

liable spouse or partner means a person who is liable to pay domestic maintenance under section 58(2) or section 68(2)

living allowance has the meaning given to it by section 35A

most recent tax year, in relation to a child support year, means the tax year that ended on 31 March immediately preceding the start of that child support year

officer of the Department means an officer of the Department as defined in the Tax Administration Act 1994

ordinarily resident in New Zealand has the meaning given to it by section 218

overseas jurisdiction

(a)

means a country outside New Zealand and a State, territory, province, or other part of a country outside New Zealand; and

(b)

includes the Cook Islands, Niue, and Tokelau

parent, in relation to a child, means a person to whom section 7 applies

payee means,—

(a)

in relation to any child support required to be paid in respect of any qualifying child, a person who is a receiving carer of that child in relation to the child support so payable:

(b)

in relation to any domestic maintenance, the person who is entitled to receive that domestic maintenance under section 58(2) or section 68(2)

person includes a company, a local or public authority, and an unincorporated body of persons

proceeding means a proceeding before a court or before the Commissioner under Part 5A, 6A, or 6B

properly made, in relation to an application for acceptance of a voluntary agreement, means made in accordance with section 55

property includes real and personal property, and any estate or interest in any real or personal property, and any debt, and any thing in action, and any other right or interest

qualifying child means a child to whom section 5 applies

qualifying voluntary agreement means a voluntary agreement that, under section 48, qualifies for acceptance by the Commissioner

receiving carer means—

(a)

a carer of a qualifying child who the Commissioner determines under section 17 is a receiving carer of the child; or

(b)

a person who is entitled to receive child support under section 58(1) or 68(1)

social security benefit means—

(a)

sole parent support granted under section 20D of the Social Security Act 1964:

(b)

an unsupported child’s benefit granted under section 29 of the Social Security Act 1964:

(c)

where the person is a sole parent within the meaning of the Social Security Act 1964 and the application for the benefit was made after 24 July 1990,—

(i)
[Repealed]

(ii)

a supported living payment granted under section 40B on the ground of sickness, injury, disability, or total blindness of that Act:

(iii)

subject to subsection (1A), jobseeker support:

(iv)
[Repealed]

(v)

young parent payment:

(d)

where the person is a sole parent within the meaning of the Social Security Act 1964 and the application for the benefit was made on or after 1 August 1991, an emergency benefit granted under section 61 of that Act,—

and social security beneficiary means a person who is in receipt of one of those benefits

source deduction payment means a PAYE income payment (as defined in section RD 3 of the Income Tax Act 2007)

step-parent, in relation to any child, means, in applying any provision of this Act relating to the liability of a person to pay child support, any person who has been declared to be a step-parent of the child by a Family Court under section 99

tax year has the meaning in section YA 1 of the Income Tax Act 2007

taxable income has the meaning in section YA 1 of the Income Tax Act 2007

unincorporated body of persons includes—

(a)

a partnership:

(b)

a joint venture:

(c)

the trustees of a trust

withholding income means—

(a)

income from employment that has a New Zealand source that is subject to the PAYE rules (as defined in section YA 1 of the Income Tax Act 2007):

(b)

interest or a dividend that has a New Zealand source that is subject to the RWT rules (as defined in section YA 1 of the Income Tax Act 2007).

(1A)

The reference to jobseeker support in paragraph (c)(iii) of the definition of social security benefit in subsection (1) does not include jobseeker support granted under section 88C(2) or (3) of the Social Security Act 1964.

(2)

Unless otherwise specified, the application of any provision of this Act to a person, assessment, payment, or other matter shall be determined in respect of each day in a child support year, and any assessment or other calculation shall be made on the basis of the circumstances existing in relation to that day.

(3)

For the purposes of this Act, a tax year corresponds with a child support year if,—

(a)

in relation to a person whose income is assessed under the Tax Administration Act 1994, the tax year ends on the last day of the child support year:

(b)

in relation to a person who is resident in a country outside New Zealand, the tax year of that country ends on a date nearest to the last day of the child support year.

(4)

For the purposes of subsection (3)(a), if a person’s income is assessed in relation to the year ending with the annual balance date of the person’s accounts, the corresponding year is determined in accordance with section 38 of the Tax Administration Act 1994.

(5)

For the purposes of subsection (3)(b), 30 September in any year is deemed to be nearer to the last preceding 31 March than to the next succeeding 31 March.

Section 2(1) adjusted taxable income: inserted, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) annual amount of child support: inserted, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) annual rate of child support: inserted, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) assessment: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 2(1) care cost percentage: inserted, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) care order or agreement: inserted, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) carer: inserted, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) child expenditure amount: inserted, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) child expenditure table: inserted, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) child support group: inserted, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) child support income amount: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) child support percentage: repealed, on 1 April 2015, by section 5(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) Commissioner: amended, on 23 September 1997, by section 2(1) of the Child Support Amendment Act (No 3) 1997 (1997 No 76).

Section 2(1) Commissioner: amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 2(1) domestic maintenance: inserted, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 2(1) election period: repealed, on 1 April 2015, by section 206 of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

Section 2(1) eligible applicant: repealed, on 1 April 2015, by section 5(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) eligible custodian: repealed, on 1 April 2015, by section 5(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) employee: amended, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 2(1) employee: amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 2(1) employer: amended, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 2(1) employer: amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 2(1) financial support paragraph (b): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 2(1) financial support paragraph (c): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 2(1) financially independent paragraph (b): amended, on 1 October 1998, pursuant to regulation 49 of the Student Allowances Regulations 1998 (SR 1998/277).

Section 2(1) financially independent paragraph (c): amended, on 1 October 1998, by section 11 of the Employment Services and Income Support (Integrated Administration) Act 1998 (1998 No 96).

Section 2(1) financially independent paragraph (c): amended, on 1 October 1998, by section 57 of the Social Security Amendment Act 1998 (1998 No 19).

Section 2(1) financially independent paragraph (d): amended, on 1 October 1998, by section 57 of the Social Security Amendment Act 1998 (1998 No 19).

Section 2(1) formula assessment: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) income amount order: replaced, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) income from employment: inserted (with effect on 1 April 2001), on 7 November 2001, by section 3(1)(b) of the Child Support Amendment Act 2001 (2001 No 90).

Section 2(1) income from employment: amended, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 2(1) income percentage: inserted, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) income year: repealed, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 2(1) inflation percentage: replaced, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) last relevant income year: repealed, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 2(1) last relevant tax year: replaced, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) last relevant tax year paragraph (a): amended, on 25 February 2016, by section 4(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 2(1) liable parent: replaced, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) liable spouse: repealed, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 2(1) liable spouse or partner: inserted, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 2(1) living allowance: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) married person: repealed, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 2(1) most recent income year: repealed, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 2(1) most recent tax year: inserted, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 2(1) officer of the Department: inserted, on 23 September 1997, by section 2(2) of the Child Support Amendment Act (No 3) 1997 (1997 No 76).

Section 2(1) overseas jurisdiction: inserted, on 26 September 2006, by section 4(2) of the Child Support Amendment Act 2006 (2006 No 42).

Section 2(1) payee paragraph (a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) payee paragraph (b): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 2(1) principal provider of ongoing daily care: repealed, on 1 April 2015, by section 5(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) proceeding: amended, on 26 September 2006, by section 4(1)(b) of the Child Support Amendment Act 2006 (2006 No 42).

Section 2(1) proceeding: amended (with effect on 1 July 1994), on 15 July 1994, by section 6(1) of the Child Support Amendment Act 1994 (1994 No 74).

Section 2(1) properly made: replaced, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) qualifying custodian: repealed, on 1 April 2015, by section 5(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) receiving carer: replaced, on 25 February 2016, by section 4(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 2(1) relevant average weekly earnings amount: repealed, on 1 April 2015, by section 5(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) shared custody child: repealed, on 1 April 2015, by section 5(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) social security benefit paragraph (a): amended, on 15 July 2013, by section 86 of the Social Security (Benefit Categories and Work Focus) Amendment Act 2013 (2013 No 13).

Section 2(1) social security benefit paragraph (c)(i): repealed, on 15 July 2013, by section 86 of the Social Security (Benefit Categories and Work Focus) Amendment Act 2013 (2013 No 13).

Section 2(1) social security benefit paragraph (c)(ii): amended, on 15 July 2013, by section 97 of the Social Security (Benefit Categories and Work Focus) Amendment Act 2013 (2013 No 13).

Section 2(1) social security benefit paragraph (c)(iii): replaced, on 1 March 2016, by section 4(3) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 2(1) social security benefit paragraph (c)(iv): repealed, on 15 July 2013, by section 114 of the Social Security (Benefit Categories and Work Focus) Amendment Act 2013 (2013 No 13).

Section 2(1) social security benefit paragraph (c)(v): replaced, on 20 August 2012, by section 27(2) of the Social Security (Youth Support and Work Focus) Amendment Act 2012 (2012 No 50).

Section 2(1) source deduction payment: substituted, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 2(1) spousal maintenance: repealed, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 2(1) substantially equal sharing of ongoing daily care: repealed, on 1 April 2015, by section 5(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) tax year: inserted, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) taxable income: replaced, on 1 April 2015, by section 5(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 2(1) withholding income: added (with effect on 1 April 2001), on 7 November 2001, by section 3(1)(b) of the Child Support Amendment Act 2001 (2001 No 90).

Section 2(1) withholding income paragraph (a): amended, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 2(1) withholding income paragraph (b): amended, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 2(1A): inserted, on 1 March 2016, by section 4(4) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 2(3): added, on 24 July 1999, by section 2(3) of the Child Support Amendment Act 1999 (1999 No 81).

Section 2(3): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 2(3)(a): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 2(3)(b): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 2(4): added, on 24 July 1999, by section 2(3) of the Child Support Amendment Act 1999 (1999 No 81).

Section 2(4): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 2(5): added, on 24 July 1999, by section 2(3) of the Child Support Amendment Act 1999 (1999 No 81).

3 Act to bind the Crown

Subject to section 186, this Act shall bind the Crown.

3A Application, transitional, and savings provisions relating to amendments to this Act

Schedule 1 contains application, transitional, and savings provisions (relating to amendments made to this Act on or after 1 April 2015) that affect other provisions of this Act (see section 276).

Section 3A: inserted, on 17 April 2013, by section 6 of the Child Support Amendment Act 2013 (2013 No 12).

Section 3A heading: amended (with effect on 1 April 2015), on 25 February 2016, by section 5(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 3A: amended (with effect on 1 April 2015), on 25 February 2016, by section 5(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 3A: amended (with effect on 17 April 2013), on 27 February 2014, by section 147 of the Taxation (Annual Rates, Foreign Superannuation, and Remedial Matters) Act 2014 (2014 No 4).

4 Objects

The objects of this Act are—

(a)

to affirm the right of children to be maintained by their parents:

(b)

to affirm the obligation of parents to maintain their children:

(c)
[Repealed]

(d)

to provide that the level of financial support to be provided by parents for their children is to be determined according to their relative capacity to provide financial support and their relative levels of provision of care:

(e)

to ensure that parents with a like capacity to provide financial support for their children should provide like amounts of financial support:

(f)

to provide legislatively fixed standards in accordance with which the level of financial support to be provided by parents for their children should be determined:

(fa)

to affirm the right of carers who provide significant care to children to receive financial support in respect of those children from a parent or parents of the children:

(g)

to enable carers of children to receive support in respect of those children from parents without the need to resort to court proceedings:

(h)

to ensure that equity exists between parents and, where applicable, carers, in respect of the costs of supporting children:

(i)

to ensure that obligations to birth and adopted children are not extinguished by obligations to stepchildren:

(j)

to ensure that the costs to the State of providing an adequate level of financial support for children and their carers is offset by the collection of a fair contribution from liable parents:

(k)

to provide a system whereby child support and domestic maintenance payments can be collected by the Crown, and paid by the Crown to those entitled to the money.

Section 4(c): repealed, on 1 April 2015, by section 7(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 4(d): amended, on 1 April 2015, by section 7(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 4(fa): inserted, on 1 April 2015, by section 7(3) of the Child Support Amendment Act 2013 (2013 No 12).

Section 4(g): amended, on 1 April 2015, by section 7(4) of the Child Support Amendment Act 2013 (2013 No 12).

Section 4(h): amended, on 1 April 2015, by section 7(5) of the Child Support Amendment Act 2013 (2013 No 12).

Section 4(j): amended, on 1 April 2015, by section 7(6)(a) of the Child Support Amendment Act 2013 (2013 No 12).

Section 4(j): amended, on 1 April 2015, by section 7(6)(b) of the Child Support Amendment Act 2013 (2013 No 12).

Section 4(k): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

4A Overview of child support payable under formula assessment

(1)

A parent or non-parent carer of a qualifying child may apply to the Commissioner for a formula assessment of child support payable for that child.

(2)

The Commissioner will then determine the proportion of care that each carer of the child provides, and the income of each parent of the child, and, using that information, will identify the parent or parents who are liable to pay child support, and the carer or carers who are entitled to receive child support, in respect of the child.

(3)

A person will be a liable parent in respect of a child if his or her income percentage (which is a percentage of the combined child support income amounts of both the child’s parents) is greater than the person’s care cost percentage (which is a cost percentage directly related to the proportion of care that the parent provides to the child).

(4)

If annual child support is payable by a liable parent for a qualifying child, the amount is determined under Part 2. It is worked out by deducting the liable parent’s care cost percentage from their income percentage, and then multiplying the result by the appropriate amount set out in the relevant child expenditure table (which identifies, amongst other things, the average annual expenditure on children in New Zealand, by reference to average weekly earnings).

(5)

This section is by way of explanation only. If it is inconsistent with any other provision of this Act, the other provision prevails.

Section 4A: inserted, on 1 April 2015, by section 8 of the Child Support Amendment Act 2013 (2013 No 12).

Section 4A: amended, on 25 February 2016, by section 6 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Part 1 Liability to pay child support under formula assessment

General principles concerning liability to pay child support

5 Children who qualify for child support

(1)

A child qualifies for child support if he or she—

(a)

is under the age of 18, or is aged 18 and enrolled at and attending a school; and

(b)

is not living with another person in a marriage, civil union or de facto relationship; and

(c)

is not financially independent; and

(d)

is a New Zealand citizen or is ordinarily resident in New Zealand.

(2)

In subsection (1)(a), school means—

(a)

a registered school (as defined in section 2(1) of the Education Act 1989); or

(b)

an overseas school.

(3)

A child who is enrolled at a registered school and attends it until the end of the school’s academic year is deemed to be enrolled at and attending the school until 31 December in that year.

(4)

In relation to the child support year commencing on 1 April 2015, subsection (1) must be read as if the whole of paragraph (a) were replaced by a reference to a child under 19 years of age.

Section 5(1)(a): replaced, on 1 April 2015, by section 9(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 5(1)(b): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 5(2): inserted, on 1 April 2015, by section 9(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 5(3): inserted, on 1 April 2015, by section 9(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 5(4): inserted, on 1 April 2015, by section 9(2) of the Child Support Amendment Act 2013 (2013 No 12).

6 Parents by whom child support payable

(1)

Child support may be sought in respect of a qualifying child from any person—

(a)

who is a parent of the child within the meaning of section 7; and

(b)

who is a New Zealand citizen or is ordinarily resident in New Zealand or in a country with which New Zealand has entered into a reciprocal agreement for enforcement of child support.

(2)

Notwithstanding subsection (1), where—

(a)

a child has been adopted under the Adoption Act 1955 or under an adoption to which section 17 of that Act applies; and

(b)

that adoption order has not been discharged,—

child support may not be sought in respect of the child in relation to any period after the time at which the final adoption order became effective from any person who was a parent of the child before that time unless that person is also a person who adopted the child.

7 Meaning of parent

(1)

For the purposes of this Act, a person is a parent of a child if—

(a)

the person’s name is entered in the Register of Births pursuant to the Births, Deaths, Marriages, and Relationships Registration Act 1995, or is entered in a register of births or parentage information kept under the law of any overseas jurisdiction, as a parent of the child; or

(b)

the person is or was a party to a legal marriage and the child was conceived by or born to the person, or the other party to the marriage, during the legal marriage; or

(c)

the person adopted the child under the Adoption Act 1955 or under an adoption to which section 17 of that Act applies and that adoption order has not been discharged; or

(d)

a New Zealand court, or a court or public authority of any overseas jurisdiction, has at any time found that the person is a parent of the child, and the finding has not been cancelled or set aside; or

(e)

the person has, at any time in any proceeding before any court in New Zealand, or before any court or public authority in an overseas jurisdiction, or in writing signed by the person, acknowledged that he or she is a parent of the child and a court has not made a finding of paternity of the child that is to the contrary of that acknowledgment; or

(f)

a court has, under the Family Proceedings Act 1980, made a paternity order against the person in respect of the child; or

(g)

the person is the natural mother of the child; or

(h)

the person has been declared to be a step-parent of the child by a Family Court under section 99; or

(i)

a New Zealand court, or a court or public authority of any overseas jurisdiction, has appointed the person to be a guardian of the child, or has declared the person to be a guardian of the child, by reason of being the father of the child, and that appointment has not been cancelled or set aside.

(2)

Notwithstanding subsection (1), where the Commissioner is satisfied that a person—

(a)

is not, despite being a person to whom that subsection applies, a parent of a particular child; and

(b)

has not been declared to be a step-parent of that child under section 99,—

that person shall not be a parent of the child for the purposes of this Act.

(3)

On being requested to make a determination under subsection (2), the Commissioner may require the production of such evidence as the Commissioner, in his or her discretion, considers appropriate.

(4)

Where—

(a)

a child is conceived as a result of any AHR procedure to which Part 2 of the Status of Children Act 1969 applies; and

(b)

a person involved in that procedure is not the mother of the child, or a person who has the rights and liabilities of a parent of the child, in terms of that Act,—

that person shall not be a parent of the child for the purposes of this Act.

(5)

[Repealed]

Compare: 1964 No 136 s 27I(2), (3); Child Support (Assessment) Act 1989 s 8 (Aust)

Section 7(1)(a): amended, on 24 January 2009, by section 47 of the Births, Deaths, Marriages, and Relationships Registration Amendment Act 2008 (2008 No 48).

Section 7(1)(a): amended, on 26 September 2006, by section 5(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 7(1)(d): amended, on 26 September 2006, by section 5(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 7(1)(e): amended, on 26 September 2006, by section 5(2) of the Child Support Amendment Act 2006 (2006 No 42).

Section 7(1)(i): amended, on 26 September 2006, by section 5(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 7(4)(a): amended, on 1 July 2005, by section 16(a) of the Status of Children Amendment Act 2004 (2004 No 91).

Section 7(4)(b): amended, on 1 July 2005, by section 16(b) of the Status of Children Amendment Act 2004 (2004 No 91).

Section 7(5): repealed, on 26 September 2006, by section 5(3) of the Child Support Amendment Act 2006 (2006 No 42).

7A Commissioner may disregard document from overseas jurisdiction if not satisfied that document is valid and authentic

(1)

If a document purporting to be the original or a copy of a certificate, entry, or record of a birth, death, or marriage alleged to have taken place in an overseas jurisdiction is provided to the Commissioner, the Commissioner may, in his or her discretion, disregard the document for the purposes of this Act if the Commissioner is not satisfied that the document is valid and authentic.

(2)

If a document purporting to be the original or a copy of an order or decree made by a court or public authority of an overseas jurisdiction is provided to the Commissioner, the Commissioner may, in his or her discretion, disregard the document for the purposes of this Act if the Commissioner is not satisfied that the document is valid and authentic.

(3)

This section does not limit section 7(2).

Section 7A: inserted, on 26 September 2006, by section 6(1) of the Child Support Amendment Act 2006 (2006 No 42).

7B Assumptions about parents of child

(1)

The Commissioner is entitled to assume, for the purposes of a formula assessment, that a qualifying child has 2 parents, and that those parents are living apart.

(2)

However, if the Commissioner believes on reasonable grounds that either of those assumptions is incorrect, the Commissioner must apply the provisions of this Act, with any necessary modifications, to reflect the true position as determined by the Commissioner.

Section 7B: inserted, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

Application for formula assessment

Heading: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

8 Who may apply for formula assessment

(1)

Any parent or carer of a qualifying child may apply to the Commissioner for a formula assessment of child support payable in respect of the child.

(2)

However, if a qualifying child is a child in respect of whom payments are being made under section 363 of the Children, Young Persons, and Their Families Act 1989, then, despite subsection (1), the only person who may apply for a formula assessment in relation to the child is either of the following:

(a)

the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989; or

(b)

a body or organisation approved under section 396 of that Act.

Section 8: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

Section 8(1): replaced, on 25 February 2016, by section 7 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

9 Social security beneficiaries must apply for formula assessment

(1)

This section applies to a person who is a carer of a qualifying child (other than a child to whom section 8(2) applies) and—

(a)

is a social security beneficiary; and

(b)

provides, or considers that he or she provides, at least 35% of ongoing daily care to the child; and

(c)

is not already a receiving carer in respect of the child (but see subsection (4)).

(2)

A person to whom this section applies must apply for a formula assessment of child support in relation to every parent of the child unless subsection (5B) applies.

(3)

A social security beneficiary who is required under subsection (2) to apply for a formula assessment of child support in relation to a parent of the child, must make the application—

(a)

at the same time as an application for social security benefit is made:

(b)

at a time other than when an application for social security benefit is made, when notified by the Commissioner that an application for a formula assessment is required in relation to the qualifying child.

(4)

If a person who is or becomes a social security beneficiary receives child support pursuant to an order under Part 4 that relates to an overseas order (as referred to in section 67(b)),—

(a)

the person is deemed not to be a receiving carer for the purpose of this section; and

(b)

the person is deemed to have made, on the date on which he or she becomes a social security beneficiary, an election under section 70 that the order be one to which Part 4 does not apply; and

(c)

if the person ceases to be a social security beneficiary, or ceases to provide at least 35% of ongoing daily care to the child,—

(i)

any formula assessment applying at that time ceases to apply; and

(ii)

the election under section 70 is deemed to be revoked (despite section 70(4)) on the following day.

(5)

If the person is in receipt of an unsupported child’s benefit in respect of 1 or more children, but is not in receipt of any other social security benefit, subsection (2) applies only in relation to the child or children in respect of whom the unsupported child’s benefit is paid.

(5B)

A social security beneficiary is not required to apply for a formula assessment in relation to a parent of the child if the chief executive of the department for the time being responsible for the administration of the Social Security Act 1964 is satisfied that—

(a)

there is insufficient evidence available to establish who in law that parent is:

(b)

if the beneficiary made an application for a formula assessment of child support or took steps to make an application for a formula assessment of child support in relation to that parent, there would be a risk of violence—

(i)

to the beneficiary:

(ii)

if the beneficiary is a sole parent, to any of the beneficiary’s children:

(iii)

if the beneficiary is in receipt of an unsupported child’s benefit, to the beneficiary’s partner, the beneficiary’s children, the qualifying child, a parent of the qualifying child, or a sibling of the qualifying child:

(c)

that parent died before the application for social security benefit was made:

(d)

the child was conceived as a result of incest or sexual violation:

(e)

the beneficiary cannot make an application for a formula assessment of child support in relation to that parent because of a compelling circumstance, other than a circumstance mentioned elsewhere in this subsection.

(6)

Unless subsection (6B) applies, a social security beneficiary who does not comply with their obligations under this section, and who is described in section 70A(1)(a) and (b) of the Social Security Act 1964, is liable to have their rate of benefit reduced under that section.

(6B)

A social security beneficiary who does not apply for a formula assessment of child support in relation to a parent of a qualifying child when required by this section, and who is described in section 70A(1)(a) and (b) of the Social Security Act 1964, is not liable to have their rate of benefit reduced under that section if the chief executive of the department for the time being responsible for the administration of that Act is satisfied that the beneficiary is taking active steps to identify who in law that parent is.

(7)

In order to ensure the enforcement of section 70A of the Social Security Act 1964, the Commissioner may notify the chief executive of the department responsible for the administration of that Act if any social security beneficiary who is described in section 70A(1)(a) and (b) of that Act fails to comply with his or her obligations under this section, or if his or her application for a formula assessment is not properly completed.

(8)

In this section,—

sole parent has the same meaning as in section 3 of the Social Security Act 1964

violence has the same meaning as in section 3 of the Domestic Violence Act 1995.

Section 9: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

Section 9(1)(c): amended, on 1 April 2015, by section 207 of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

Section 9(2): amended, on 2 June 2016, by section 220(1) of the Taxation (Transformation: First Phase Simplification and Other Measures) Act 2016 (2016 No 27).

Section 9(3): replaced, on 2 June 2016, by section 220(2) of the Taxation (Transformation: First Phase Simplification and Other Measures) Act 2016 (2016 No 27).

Section 9(5B): inserted, on 2 June 2016, by section 220(3) of the Taxation (Transformation: First Phase Simplification and Other Measures) Act 2016 (2016 No 27).

Section 9(6): replaced, on 2 June 2016, by section 220(4) of the Taxation (Transformation: First Phase Simplification and Other Measures) Act 2016 (2016 No 27).

Section 9(6B): inserted, on 2 June 2016, by section 220(4) of the Taxation (Transformation: First Phase Simplification and Other Measures) Act 2016 (2016 No 27).

Section 9(7): amended, on 2 June 2016, by section 220(5) of the Taxation (Transformation: First Phase Simplification and Other Measures) Act 2016 (2016 No 27).

Section 9(8): inserted, on 2 June 2016, by section 220(6) of the Taxation (Transformation: First Phase Simplification and Other Measures) Act 2016 (2016 No 27).

10 Form of application

(1)

An application for formula assessment must be in an approved form and be accompanied by the documents (if any) specified in the form.

(2)

Every application must—

(a)

identify at least 1 qualifying child to whom the application relates; and

(b)

identify, in relation to each qualifying child, at least 1 person who provides at least 35% of ongoing daily care to the child; and

(c)

identify at least 1 person as a liable, or potentially liable, parent of each qualifying child identified; and

(d)

include the tax file number (as defined in section YA 1 of the Income Tax Act 2007) of each qualifying child (except to the extent that the application form permits otherwise).

(3)

The application, and every document accompanying it, must be verified as specified in the application form.

(4)

An application for a formula assessment is properly completed if—

(a)

it contains all the information required by the application form to be supplied; and

(b)

it is accompanied by all the documents required by the application form to accompany the application; and

(c)

the application and documents are verified as required by the application form.

Section 10: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

Persons who are principal providers of care or who share care substantially equally[Repealed]

Heading: repealed, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

11 Multiple applications in single form

(1)

If an application for a formula assessment is made on a single form in respect of 2 or more children, the form may be treated as if it contained separate applications for formula assessment of child support for each child.

(2)

Subsection (3) applies if—

(a)

an application is made on a single form for child support in respect of 1 child or 2 or more children; and

(b)

payment of child support is sought from both parents of the child or any of the children.

(3)

When this subsection applies, the form may be treated as if it contained separate applications for a formula assessment of child support in respect of the child or each of the children from a parent from whom payment of child support is sought.

Section 11: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

12 Deemed application by beneficiary

(1)

This section applies if a social security beneficiary is entitled to child support payments under a voluntary agreement but child support payments then cease to be payable under the agreement because—

(a)

the agreement expires; or

(b)

the amount payable by the liable parent is less than the amount that would be payable by the liable parent under a formula assessment; or

(c)

an election under section 64 (to terminate liability under the voluntary agreement) takes effect.

(2)

If this section applies, on the day after the date on which the child support payments cease to be payable under the agreement, the Commissioner is deemed to have received from the beneficiary a properly completed application for a formula assessment for child support, as required by section 9, in relation to the same child or children, the same liable parent, and the same carer, as the voluntary agreement related to.

Section 12: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

13 Notification by Commissioner of application

(1)

On receiving a properly completed application for a formula assessment in respect of 1 or more qualifying children, the Commissioner must notify the applicant, and every parent and carer identified in the application, that the Commissioner has received an application for a formula assessment and will therefore ascertain—

(a)

who the liable parent or parents, and who the receiving carer or carers, of the qualifying child are; and

(b)

the annual amount of child support payable by any liable parent in respect of each qualifying child identified in the application; and

(c)

the annual rate of child support payable by any liable parent in respect of all the liable parent’s qualifying children; and

(d)

the amount payable in respect of each receiving carer; and

(e)

the date on which the liability of a liable parent to pay child support began or begins.

(2)

If the Commissioner needs further information from the applicant (such as the name of the other parent), the Commissioner may require the applicant to provide that information and need not take further action with respect to the application until the information is provided.

(3)

If the Commissioner has already ascertained some or all of the matters listed in subsection (1), the notice under this section may include that information.

(4)

The Commissioner’s duty to ascertain the matters listed in subsection (1) is subject to section 13A.

Section 13: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

Section 13(2): amended, on 25 February 2016, by section 8(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 13(4): inserted, on 25 February 2016, by section 8(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

13A Cases where formula assessment to be refused

(1)

The Commissioner must refuse to make a formula assessment in respect of a qualifying child if subsection (2) or (4) applies.

(2)

This subsection applies if the applicant is living with a parent of the child in a marriage, civil union, or de facto relationship.

(3)

However, subsection (2) does not apply if—

(a)

the applicant is a parent of the child; and

(b)

the child has—

(i)

a parent with whom the applicant is not living in a marriage, civil union, or de facto relationship; or

(ii)

a non-parent carer with whom the applicant is not living in a marriage, civil union, or de facto relationship and who the Commissioner determines is a receiving carer.

(4)

This subsection applies if the applicant is a non-parent carer of the child who the Commissioner determines is not a receiving carer.

(5)

If the Commissioner refuses to make a formula assessment under this section, the Commissioner must notify the applicant of the refusal (and withdraw any notices given under section 13).

Section 13A: inserted, on 25 February 2016, by section 9 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Determining care cost percentages

Heading: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

14 Commissioner to establish proportions of care

(1)

The Commissioner must establish, for each qualifying child to whom a properly completed application relates, the proportion of ongoing daily care that each parent and non-parent carer identified in the application, or in other information provided following a request under section 13(2), provides to the child.

(2)

If 2 or more people who live together each provide ongoing daily care to a child,—

(a)

only 1 of those people may be treated as a carer, and the care provided by the other persons must be treated as part of the care provided by the first person; and

(b)

if 1 of the people is a parent of the child, that person must be treated as the carer.

(3)

The parents of a qualifying child in respect of whom payments are being made under section 363 of the Children, Young Persons, and Their Families Act 1989 are deemed to provide no ongoing daily care to the child.

Section 14: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

15 How Commissioner establishes proportions of care

(1)

For the purpose of section 14, the Commissioner must (subject to subsection (3)) rely on the content of any care order or agreement relating to a qualifying child when establishing the proportion of ongoing daily care that a carer provides to the child.

(2)

If a care order or agreement specifies the proportion of nights that a child is to spend with a carer, that proportion of nights is taken to be the proportion of ongoing daily care provided to the child by that carer.

(3)

A parent or carer of a qualifying child may challenge the application of subsection (1) or (2) by providing evidence of—

(a)

why a care order or agreement should not be relied on; or

(b)

why the proportion of nights that a child spends with a carer should not be taken to be the proportion of ongoing daily care provided to that child by that carer.

(4)

If there is no care order or agreement relating to the child, or if the Commissioner is satisfied, on the basis of evidence provided, that a care order or agreement does not accurately reflect the proportion of ongoing daily care provided by a carer to a child, the Commissioner must establish the proportion of care provided by a carer primarily on the basis of the number of nights that the child spends with the carer.

(5)

If the Commissioner is satisfied, on the basis of evidence provided, that the number of nights spent with a carer is not a true reflection of the proportion of care actually provided by a carer to the child, the Commissioner must establish the proportion of care provided on the basis of the amount of time that the carer is the person responsible for the daily care of the child.

(6)

When establishing proportions of care, the Commissioner—

(a)

must use only whole percentage figures and, for that purpose, must round figures over 50% upwards to the next whole percentage figure, and figures under 50% downwards to the next whole percentage figure; and

(b)

must assume that every year has 365 days.

Section 15: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

16 Determining care cost percentages

(1)

The Commissioner must determine the care cost percentage of each parent and carer of a qualifying child on the basis of the proportion of care that the Commissioner has established, under section 14, that each carer provides to the child.

(2)

The care cost percentage that applies is the relevant percentage set out in, or determined in accordance with, column 2 of the table in Schedule 2.

Section 16: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

Liable parents and receiving carers

Heading: inserted, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

17 Determining who are liable parents and receiving carers

(1)

The Commissioner must determine the liable parents and receiving carers of each qualifying child, in accordance with this section.

(2)

A parent of a qualifying child is a liable parent of that child if the parent’s income percentage (as determined under section 33) is greater than or equal to their care cost percentage for that child (as determined under section 16).

(3)

A parent of a qualifying child is a receiving carer of the child if the parent’s income percentage is less than their care cost percentage for the child.

(3A)

Despite subsections (2) and (3), a parent whose income percentage is 100% and whose care cost percentage is also 100% is a receiving carer.

(4)

A non-parent carer of a qualifying child is a receiving carer of the child if the carer provides at least 35% of ongoing daily care to the child.

Section 17: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

Commencement of liability to pay child support[Repealed]

Heading: repealed, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

18 Effect of being liable parent or receiving carer

(1)

A person who the Commissioner determines is a liable parent of a child is liable to make payments of child support in respect of that child, unless the parent’s liability is assessed as nil in accordance with section 31(1).

(2)

A person who the Commissioner determines is a receiving carer of a child is a person in relation to whom child support payments in respect of the child are payable, unless no child support is payable in accordance with section 36A(3) or 36C(4).

Section 18: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

Beginning of liability to pay child support under formula assessment

Heading: inserted, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

19 When liability to pay child support starts

(1)

The liability of a liable parent to pay child support under a formula assessment starts—

(a)

from the day on which the properly completed application for that formula assessment is received by the Commissioner; or

(b)

if a reassessment results in a person being identified as a liable parent, from the date specified in the reassessment as the effective date.

(2)

If a parent becomes liable to pay child support to a person in relation to a child under a formula assessment, any existing liability of that parent to pay child support to the person in relation to that child under any voluntary agreement is suspended between the commencement of liability to pay under the formula assessment and the end of that liability.

(3)

If the Commissioner receives an application for a formula assessment that names a person as a parent of a qualifying child (person P), but person P is not at that time a parent of the child within the meaning of section 7, then, if the application is otherwise properly completed, liability by person P to pay child support in respect of the child starts from the day on which the application was received if—

(a)

a court later declares person P to be the parent of the child, or person P is later declared to be a parent of the child by an order made by a court or a public authority in an overseas jurisdiction; and

(b)

the Commissioner determines under this Part that person P is a liable parent of the child.

Section 19: replaced, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

20 Suspension of voluntary agreements
[Repealed]

Section 20: repealed, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

Procedure after acceptance or refusal of application for formula assessment[Repealed]

Heading: repealed, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

21 Duty to give notice of decision to unsuccessful applicant
[Repealed]

Section 21: repealed, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

22 Duty to give notice of decision to custodian
[Repealed]

Section 22: repealed, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

23 Duty to give notice to person from whom child support sought
[Repealed]

Section 23: repealed, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

24 Duty to make assessment
[Repealed]

Section 24: repealed, on 1 April 2015, by section 10 of the Child Support Amendment Act 2013 (2013 No 12).

Termination of liability to pay child support under formula assessment

25 When liability to pay child support ceases

(1)

A liable parent ceases to be liable to pay child support in respect of a qualifying child under a formula assessment on the day before the date on which the child—

(a)

ceases to be a qualifying child; or

(b)

is adopted; or

(c)

dies.

(2)

A liable parent ceases to be liable to pay child support under a formula assessment on the day the parent ceases to be a liable parent under section 17, or on the day before the date on which the parent—

(a)

becomes a person who is none of the following:

(i)

a New Zealand citizen:

(ii)

a person who is ordinarily resident in New Zealand:

(iii)

a person who is ordinarily resident in a country with which New Zealand has entered into a reciprocal agreement for the enforcement of child support; or

(b)

becomes a person from whom child support may not be sought in respect of the child by reason of section 6(2); or

(c)

dies.

(3)

A liable parent ceases to be liable to pay child support in respect of a particular receiving carer of a qualifying child under a formula assessment on the earliest of the following:

(a)

if the receiving carer dies, on the earlier of the following:

(i)

the 28th day after the date of death:

(ii)

the day before the date on which a properly completed application for formula assessment is received by the Commissioner from a carer in place of the carer who has died:

(b)

the day before the date on which the receiving carer ceases to provide at least 35% of ongoing daily care to the child:

(c)

the day before the date on which the receiving carer starts to live, or resumes living, with the liable parent of the child in a marriage, civil union, or de facto relationship:

(d)

in any case to which section 8(2) applies, the day before the date on which the carer ceases to be under a duty to make payments under section 363 of the Children, Young Persons, and Their Families Act 1989 in respect of the child:

(e)
[Repealed]

(f)

in a case where a voluntary agreement made in relation to the child between the liable parent and the carer is accepted by the Commissioner, the day before the date on which that voluntary agreement first applies, in accordance with section 59.

(4)

Subsection (5) applies if the Commissioner accepts an election under section 27 to end a formula assessment as it applies in respect of a qualifying child.

(5)

A liable parent ceases to be liable to pay child support in respect of the qualifying child under the formula assessment on—

(a)

the day on which the Commissioner received the notice of election; or

(b)

if the notice of election specified a later day on which the formula assessment as it applies in respect of the qualifying child is to end, that later day.

Section 25: replaced, on 1 April 2015, by section 11 of the Child Support Amendment Act 2013 (2013 No 12).

Section 25(3)(e): repealed, on 25 February 2016, by section 10(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 25(4): inserted, on 25 February 2016, by section 10(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 25(5): inserted, on 25 February 2016, by section 10(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

26 Miscellaneous provisions relating to death of carer

(1)

Where child support continues to be payable in terms of section 25(3)(a)(i) until the 28th day after the date of death of the receiving carer, child support payments held by the Commissioner relating to the period commencing on the day following the date of death and ending with the day on which the child support payments cease shall be refunded to the liable parent.

(2)

Where child support continues to be payable in terms of section 25(3)(a)(ii) until the day on which a formula assessment in relation to a new application commences to apply, this Act shall apply as if—

(a)

the receiving carer in relation to the new application was the receiving carer from the day following the date of death of the previous receiving carer; and

(b)

the new application was received on the day following the date of death of the previous receiving carer.

Section 26 heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 26(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 26(2): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 26(2)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 26(2)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Election to end formula assessment

27 Election by receiving carer to end formula assessment

(1)

Where a formula assessment applies in respect of a qualifying child (child C), a person may by notice to the Commissioner elect to end the formula assessment as it applies in respect of child C.

(2)

If a person (person P) does so, the Commissioner must accept the election if satisfied that the election qualifies for acceptance (and may refuse to accept the election if not so satisfied) (see section 25(4) and (5) for the effect of the Commissioner’s acceptance of the election).

(3)

The election qualifies for acceptance if—

(a)

person P is a recognised carer of child C by virtue of subsection (6)(a); and

(b)

every other recognised carer of child C (if any) agrees to the election.

(4)

However, the election does not qualify for acceptance if a recognised carer of child C is, or is expected to be, on the day referred to in section 25(5)(a) or (b) (as the case may be),—

(a)

a social security beneficiary by virtue of paragraph (a), (c), or (d) of the definition of social security benefit in section 2(1); or

(b)

a social security beneficiary by virtue of paragraph (b) of that definition where the unsupported child’s benefit is granted in respect of child C.

(5)

In determining whether to accept the election, the Commissioner—

(a)

may act on the basis of any information accompanying the notice of election and any other information in the Commissioner’s possession; and

(b)

is not required to conduct any enquiries or investigations into the matter.

(6)

For the purposes of this section, a recognised carer of child C is a person who is either of the following at the time the Commissioner receives the notice of election:

(a)

a receiving carer of child C under the formula assessment:

(b)

a parent of child C who is not a receiving carer of child C under the formula assessment but who provides at least 28% of ongoing daily care to child C.

(7)

The Commissioner’s acceptance of the election is final, unless overturned in accordance with subsection (8) or (9).

(8)

The acceptance may be overturned, wholly on the basis of information in the Commissioner’s possession at the time of the acceptance,—

(a)

under Part 6, on an objection to the acceptance made under section 90(1)(bb); or

(b)

under Part 7, on an appeal against the Commissioner’s disallowance of an objection to the acceptance made under section 90(1)(bb).

(9)

The Commissioner may overturn the acceptance if a person whom the Commissioner regarded as being a recognised carer of child C when accepting the election is a social security beneficiary of the kind referred to in subsection (4)(a) or (b) on the day referred to in section 25(5)(a) or (b) (as the case may be).

(10)

Without affecting the acceptance, subsequent changes may be made to the receiving carers or liable parents, or to their entitlements or liabilities, under the formula assessment in respect of times before the day referred to in section 25(5)(a) or (b) (as the case may be) (and the acceptance does not prevent a person applying for a new formula assessment in respect of child C).

(11)

A notice of election must be given using an approved form or given in another way approved by the Commissioner.

Compare: Child Support (Assessment) Act 1989 s 151 (Aust)

Section 27: replaced, on 25 February 2016, by section 11 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Part 2 Amount of child support payable under formula assessment made by Commissioner

28 This Part sets out rates of child support

(1)

This Part sets out the rates of child support payable under a formula assessment of child support made by the Commissioner.

(2)

This Part is subject to any determination made by the Commissioner under Part 5A, or 6A, or 6B and to any order made by the court under Part 7.

(3)

If no application for formula assessment of child support is made, or required to be made, or deemed to be made, under this Act, this Part shall not apply.

(4)

If a carer of a child and a liable parent wish child support to be paid at a different rate, they may, subject to this Act, enter into a voluntary agreement.

Section 28(2): substituted (with effect on 1 July 1994), on 15 July 1994, by section 6(1) of the Child Support Amendment Act 1994 (1994 No 74).

Section 28(2): amended, on 26 September 2006, by section 8 of the Child Support Amendment Act 2006 (2006 No 42).

Section 28(4): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

29 Commissioner to assess child support payable under formula assessment

(1)

As soon as practicable after identifying a liable parent under Part 1, the Commissioner must—

(a)

assess the annual amount of child support payable by the liable parent in that child support year in respect of each of his or her qualifying children; and

(b)

assess the annual rate of child support payable by the liable parent in that child support year in respect of all of his or her qualifying children; and

(c)

where the application for a formula assessment was made in the previous child support year, make such assessments in relation to the previous child support year.

(2)

Before, or as soon as practicable after, the start of each later child support year in which child support continues, or appears likely to continue, to be payable in respect of any qualifying child of the parent, the Commissioner must make the assessments referred to in subsection (1)(a) and (b) in relation to that later child support year.

(3)

Every assessment must be done in accordance with this Part and Part 5.

Section 29: replaced, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

30 Formula for assessing annual amount of child support

(1)

The formula for assessing the annual amount of child support payable under a formula assessment by a liable parent in a child support year in respect of a qualifying child is the parent’s income percentage minus the parent’s care cost percentage, multiplied by the child expenditure amount for the child. This formula can be expressed as—

(i% − c%) × p

where—

i%

is the liable parent’s income percentage determined under section 33

c%

is the liable parent’s care cost percentage determined under section 16

p

is the child expenditure amount for a qualifying child.

(2)

The child expenditure amount for a qualifying child in a child support year is—

e ÷ n

where—

e

is the amount, determined in accordance with the child expenditure table applying to that child support year, that applies to the parent in respect of the child on the basis of—

(a)

the combined child support income amounts of both parents of the child; and

(b)

the number of children in the child’s child support group; and

(c)

the age group of those children

n

is the number of children in the same child support group as the child.

Section 30: replaced, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

31 Annual amount of child support payable by liable parent

(1)

The annual amount of child support payable under a formula assessment by a liable parent in respect of a qualifying child is nil, and section 32 does not apply, if—

(a)

the liable parent provides more than 65% of ongoing daily care to the child; or

(b)

the liable parent provides at least 28% of ongoing daily care to the child and the liable parent’s income percentage is equal to their care cost percentage; or

(c)

no receiving carer provides at least 35% of ongoing daily care to the child.

(2)

Where subsection (1) does not apply, the annual amount of child support payable under a formula assessment by a liable parent in a child support year in respect of a qualifying child is as follows:

(a)

the amount determined in accordance with the formula set out in section 30(1), unless paragraph (b) or (c) applies:

(b)

for a liable parent to whom section 36 applies but section 36A does not,—

(i)

the amount determined in accordance with the formula set out in section 30(1); or

(ii)

the amount determined under the multi-group cap (referred to in subsection (3)) applying to the child, but only if it is less than the amount referred to in subparagraph (i):

(c)

for a parent to whom section 36A applies (whether or not section 36 also applies),—

(i)

the amount determined in accordance with the formula set out in section 30(1); or

(ii)

if the multi-group cap applies, the amount determined under the multi-group cap applying to the child, but only if it is less than the amount referred to in subparagraph (i); or

(iii)

the amount payable in respect of a receiving carer under section 36A, but only if it is less than each of the amounts referred to in subparagraph (i) or (ii).

(3)

The multi-group cap for a child is the amount determined as follows:

(100% − c%) × m

where—

c%

is the parent’s care cost percentage in relation to the child

m

is the multi-group cost of the child, as determined under section 36(4).

(4)

The purpose of the multi-group cap is to avoid liable parents paying more in child support than they would pay if all the children for whom they are liable to pay child support were living together.

Section 31: replaced, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

Modifications to basic formula in certain circumstances[Repealed]

Heading: repealed, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

32 Minimum annual rate of child support

If, after assessing the annual amount of child support payable under a formula assessment by a liable parent in respect of each of his or her qualifying children, the Commissioner determines that the total amount payable by the parent is less than the minimum annual rate referred to in section 72(1)(a), the Commissioner must, despite sections 30 and 31(2),—

(a)

assess the parent’s annual rate of child support as the minimum annual rate referred to in section 72(1)(a); and

(b)

determine the proportion of that minimum annual rate of child support that is payable in respect of each receiving carer, on the basis of the number of the liable parent’s qualifying children in respect of whom a formula assessment applies that each receiving carer provides care for.

Section 32: replaced, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

Section 32: amended, on 25 February 2016, by section 12(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 32(b): amended, on 25 February 2016, by section 12(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Determining income percentages

Heading: inserted, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

33 Income percentage

A parent’s income percentage, in relation to a qualifying child, is the percentage figure derived by dividing the person’s child support income amount (as determined under section 34) by the sum of the child support income amounts, in relation to that child, of all the parents of the child.

Section 33: replaced, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

34 Child support income amount

(1)

A parent’s child support income amount for a child support year in relation to a child is the person’s adjusted taxable income (determined under section 35) for the child support year minus each of the following:

(a)

the person’s living allowance (as determined under section 35A) for the child support year:

(b)

the sum of any dependent child allowances to which the person is entitled under section 35B for the child support year:

(c)

any multi-group allowance that relates to the child and to which the person is entitled under section 36 for the child support year.

(2)

If the result of the calculation in subsection (1) is zero or less, the parent’s child support income amount must be treated as being nil.

(3)

If the adjusted taxable income of a parent of a qualifying child cannot reasonably be ascertained, or cannot be applied by the Commissioner, the parent’s child support income amount is to be treated as being,—

(a)

if there is 1 parent whose adjusted taxable income is known, the same as that parent’s child support income amount; and

(b)

if there is more than 1 parent whose adjusted taxable income is known, the average of those parents’ child support income amounts.

Section 34: replaced, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

Section 34(1): amended, on 25 February 2016, by section 13 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

35 Adjusted taxable income

(1)

A person’s adjusted taxable income for a child support year is—

(a)

the person’s income from employment for the calendar year immediately preceding the start of the child support year if, in the most recent tax year, the person’s taxable income was derived solely from withholding income; or

(b)

if paragraph (a) does not apply, the person’s taxable income in the tax year immediately preceding the most recent tax year, inflated by the inflation percentage for the child support year.

(2)

[Repealed]

(3)

[Repealed]

(4)

[Repealed]

(5)

[Repealed]

(6)

If a person’s taxable income for a tax year has not been assessed, the Commissioner must determine the person’s taxable income,—

(a)

if an income statement has been issued, on that basis; and

(b)

in any other case, on the basis of the income and any other particulars known to the Commissioner.

(7)

This section is subject to—

(a)

sections 38 to 39A (which relate to ascertaining taxable income, etc); and

(b)

sections 40AA to 44A (which permit elections for adjusted taxable income to be assessed using estimated taxable income).

Section 35: replaced, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

Section 35(1): replaced, on 25 February 2016, by section 14(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 35(2): repealed, on 25 February 2016, by section 14(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 35(3): repealed, on 25 February 2016, by section 14(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 35(4): repealed, on 25 February 2016, by section 14(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 35(5): repealed, on 25 February 2016, by section 14(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 35(7): replaced, on 25 February 2016, by section 14(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

35A Living allowance

(1)

A parent’s living allowance in a child support year is the appropriate amount referred to in subsection (2)—

(a)

increased by the total amount of income tax deductions that would be required to make the rate a gross, rather than a net, rate (as determined in accordance with section RD 11(3) of the Income Tax Act 2007); and

(b)

annualised.

(2)

The amount of living allowance is as follows:

(a)

for every person other than a person identified in paragraph (b), the rate set out in clause 1 of Schedule 3A of the Social Security Act 1964 (ignoring the reference to Income Test 1):

(b)

for a person granted a supported living payment under section 40B or 40D of the Social Security Act 1964 who is, for the purposes of that benefit, a single beneficiary with 1 or more dependent children, the rate set out in clause 1(c) of Schedule 6 of that Act (ignoring the reference to Income Test 1).

(c)
[Repealed]

(3)

The version of the appropriate schedule of the Social Security Act 1964 that applies in a child support year is the version in force on 1 January in the immediately preceding child support year.

(4)

The Commissioner must ensure that notice of the applicable living allowances under this section that apply to the current and (if applicable) the previous child support year is available at all reasonable times on an Internet site maintained by or on behalf of the Inland Revenue Department.

Section 35A: inserted, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

Section 35A(2)(a): replaced (with effect on 1 April 2015), on 25 February 2016, by section 15 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 35A(2)(b): replaced (with effect on 1 April 2015), on 25 February 2016, by section 15 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 35A(2)(c): repealed (with effect on 1 April 2015), on 25 February 2016, by section 15 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

35B Dependent child allowance

(1)

For the purpose of calculating a parent’s child support income amount under section 34 in a child support year, a parent is entitled to a dependent child allowance in respect of each of his or her dependent children.

(2)

The amount of a parent’s dependent child allowance, in relation to each dependent child, is—

c% × e ÷ n

where—

c%

is the care cost percentage of the parent in relation to the dependent child (being the percentage that would be determined under section 16 if the child were a qualifying child)

e

is the amount, determined in accordance with the child expenditure table applying to that child support year, that applies to the parent in respect of the dependent child on the basis of—

(a)

the child support income amount of the parent alone, with that amount being treated as the adjusted taxable income of the parent, minus the parent’s living allowance; and

(b)

the total number of the parent’s dependent children; and

(c)

the age group of those children

n

is the total number of the parent’s dependent children.

(3)

In this section, a person’s dependent child means a child of whom the person is a parent (within the meaning in section 7) and who—

(a)

is maintained as a member of the parent’s family and for whom the parent provides at least 28% of the ongoing daily care; and

(b)

is not a child in relation to whom any person is a liable parent or receiving carer, or for whom, under the law of another country, any person is required to make payments that are of the same nature as child support; and

(c)

meets the requirements of section 5(1)(a) to (c) (which describe which children qualify for child support).

Section 35B: inserted, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

36 Multi-group allowance

(1)

This section applies to a parent who has more than 1 child support group.

(2)

For the purpose of calculating a parent’s child support income amount in relation to a particular child (child C) in a child support year, a parent to whom this section applies is entitled to a multi-group allowance in relation to child C.

(3)

The multi-group allowance in relation to child C is the sum of the multi-group costs of each child (child D) of the parent who is not in the same child support group as child C.

(4)

The multi-group cost of child D is—

e ÷ n

where—

e

is the amount, determined in accordance with the child expenditure table applying to the relevant child support year, that applies to the parent in respect of child D—

(a)

on the basis of the child support income amount of that parent alone, with that amount being treated as the adjusted taxable income of the parent, minus the parent’s living allowance and the sum of any dependent child allowances to which the parent is entitled; and

(b)

as if—

(i)

child D were one of n children; and

(ii)

all those children were the same age as child D

n

is the total number of children of the parent in all the parent’s child support groups.

Section 36: replaced, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

Amounts payable in respect of receiving carers

Heading: inserted, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

36A Where parent is sole receiving carer

(1)

This section applies where, in respect of a qualifying child, there is only 1 receiving carer, and that carer (person P) is a parent of the child.

(2)

When this section applies, the amount of child support payable in respect of person P is—

(a)

the amount of annual child support that person P would pay if the difference between person P’s income percentage and care cost percentage (which, under the formula in section 30, is a negative percentage) were a positive percentage; or

(b)

if the multi-group cap applies, the amount payable under the multi-group cap, but only if it is less than the amount payable under paragraph (a).

(3)

However, no child support is payable under subsection (2) in respect of a receiving carer of a qualifying child if the receiving carer provides less than 35% of ongoing daily care to the child.

Section 36A: inserted, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

36B Where no receiving carers are parents

(1)

This section applies if, in respect of a qualifying child, there are 1 or 2 receiving carers, and neither of them is a parent of the child.

(2)

If the liable parent is liable to pay child support in respect of just 1 non-parent receiving carer, the amount of child support payable in respect of that carer is the annual amount of child support payable by the liable parent for the child.

(3)

If the liable parent is liable to pay child support in respect of 2 non-parent receiving carers, the amount of child support payable in respect of each carer is—

f × c% ÷ g%

where—

f

is the annual amount of child support payable by the liable parent for the child

c%

is the care cost percentage of the receiving carer in relation to the child

g%

is the combined care cost percentages of both the receiving carers of the child, in relation to the child.

Section 36B: inserted, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

36C Where 1 receiving carer is parent and other is non-parent

(1)

This section applies if, in respect of a qualifying child, there are 2 receiving carers, where 1 of them is a parent of the child and the other is a non-parent carer of the child.

(2)

The amount of child support payable in respect of the receiving parent (person P) is—

(a)

the amount of annual child support that person P would pay if the difference between person P’s income percentage and care cost percentage (which, under the formula in section 30, is a negative percentage) were a positive percentage; or

(b)

if the multi-group cap applies, the amount determined by multiplying—

(i)

the amount payable in respect of the qualifying child, as determined by the liable parent’s multi-group cap; by

(ii)

the difference between person P’s income percentage and care cost percentage, as if it were a positive percentage.

(3)

The amount of child support payable in respect of the non-parent receiving carer is the annual amount of child support payable by the liable parent for the child, minus the amount payable under subsection (2) to person P.

(4)

However, no child support is payable under subsection (2) in respect of a receiving carer who is a parent of a qualifying child if the parent provides less than 35% of ongoing daily care to the child.

Section 36C: inserted, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

Expenditure on children

Heading: inserted, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

36D Child expenditure tables

(1)

Before the start of a child support year, the Commissioner must approve a child expenditure table for that child support year, based on the expenditure on children table in Schedule 3, that identifies, for the relevant child support year,—

(a)

the amount of the average weekly earnings that applies; and

(b)

the amount of child support income that is taken to be expended on children, with that amount corresponding to the percentages set out in the expenditure on children table within each income band in the table.

(2)

The Commissioner must ensure that the child expenditure table for the current and (if applicable) the previous child support year is available—

(a)

on request to the Inland Revenue Department, in hard copy; and

(b)

at all reasonable times, on an Internet site maintained by or on behalf of the Inland Revenue Department.

(3)

Whenever an income amount is used in relation to the child expenditure table, the income amount must be truncated to whole dollars.

Section 36D: inserted, on 1 April 2015, by section 12 of the Child Support Amendment Act 2013 (2013 No 12).

Provisions relating to taxable income

37 Nil assessment of taxable income
[Repealed]

Section 37: repealed, on 24 October 2001, by section 260(1) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001 (2001 No 85).

38 Application of assessments under Income Tax Act 1976 or Tax Administration Act 1994

(1)

Subject to this Part, where an assessment has been made of a person’s taxable income under the Income Tax Act 1976 (other than an assessment made under section 21 of that Act or the Tax Administration Act 1994 (other than an assessment made under section 106 of that Act)) for any income year, then, in making a formula assessment, the person’s taxable income under the relevant one of those Acts for that income year is, for the purposes of this Act, to be taken to be that taxable income as so assessed or as last so assessed, as the case may be, before the making of the formula assessment.

(2)

Subsection (1) has effect despite the making, after the making of the formula assessment, of an amendment under the Income Tax Act 1976 or the Tax Administration Act 1994 to the relevant assessment of the person’s taxable income under the relevant one of those Acts (whether or not the amendment is made because of an objection in relation to the assessment).

(3)

Subsection (2) does not apply in relation to the person in any case where—

(a)

the taxable income of that person assessed under the Income Tax Act 1976 or the Tax Administration Act 1994 in any amended assessment made after the making of a formula assessment for a child support year is more than $500 in excess of, or less than, the taxable income of that person assessed, or last assessed, before the making of the formula assessment; and

(b)

notice of the amended assessment is issued by the Commissioner on or before the last day in the child support year;—

and, where such an amendment is made, the person’s taxable income under the relevant Act for that income year is to be taken to be, and always to have been, the person’s taxable income for the income year as last so assessed under the relevant Act, and the Commissioner shall amend the formula assessment accordingly.

(4)

Subsection (2) does not apply in relation to the person in any case where the reason (or one of the reasons) that the amendment was made was because, in the opinion of the Commissioner, the return of income made by the person under the Income Tax Act 1976 or the Tax Administration Act 1994 was fraudulent or wilfully misleading or omitted all mention of income which is of a particular nature or was derived from a particular source, and, where such an amendment is made, the person’s taxable income under the relevant Act for that income year is to be taken to be, and always to have been, the person’s taxable income for the income year as last so assessed under the relevant Act.

(5)

Where—

(a)

the Commissioner, applying subsection (1), assesses the annual amount of child support payable by a person; and

(b)

after the making of the formula assessment, an amendment is made under the Income Tax Act 1976 or the Tax Administration Act 1994 to the relevant assessment of the taxable income of any parent for the last relevant income year; and

(c)

neither subsection (3) nor subsection (4) applies in relation to the amendment,—

then, in subsequently amending the formula assessment other than for the purpose of giving effect to the provisions of section 39(3) of this Act, the amendment made under the Income Tax Act 1976 or the Tax Administration Act 1994 is to be disregarded.

(6)

Where—

(a)

notice of an assessment (including an amended assessment) of a person’s taxable income under the Income Tax Act 1976 or the Tax Administration Act 1994 has been given under the relevant one of those Acts; and

(b)

the notice was dated,—

the assessment is to be taken, for the purposes of this section, to have been made on the date of the notice.

(7)

Nothing in this section is to be taken to prevent the Commissioner making a determination under Part 5A, 6A, or 6B or the court making an order under Part 7.

Compare: Child Support (Assessment) Act 1989 s 56 (Aust)

Section 38 heading: amended, on 24 October 2001 (applying to 2002–03 and subsequent income years), by section 261(1) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001 (2001 No 85).

Section 38(1): amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 38(2): amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 38(3): amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 38(3)(a): amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 38(3)(b): amended, on 24 October 2001 (applying to 2002–03 and subsequent income years), by section 261(2) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001 (2001 No 85).

Section 38(4): amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 38(5): amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 38(5)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 38(5)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 38(5)(b): amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 38(5)(c): amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 38(6)(a): amended, on 24 October 2001 (applying to 2002–03 and subsequent income years), by section 261(3) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001 (2001 No 85).

Section 38(6)(a): amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 38(7): substituted (with effect on 1 July 1994), on 15 July 1994, by section 6(1) of the Child Support Amendment Act 1994 (1994 No 74).

Section 38(7): amended, on 26 September 2006, by section 12 of the Child Support Amendment Act 2006 (2006 No 42).

38A Position where taxable income from withholding income not available for full tax year
[Repealed]

Section 38A: repealed, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

39 Position where taxable income not readily ascertainable

(1)

Where—

(a)

the Commissioner is unable to readily ascertain a person’s taxable income for the last relevant tax year; and

(b)

the Commissioner has requested or required that person—

(i)

to supply a return of income for the last relevant tax year; or

(ii)

to supply an estimate of income for the last relevant tax year; or

(iii)

to supply an estimate of the income expected to be derived in the child support year; or

(iv)

to give information (whether orally or in writing), or to produce a document,—

(whether the requirement was made under this Act, or under the Income Tax Act 1976 or the Tax Administration Act 1994 or otherwise) for the purposes of ascertaining that taxable income; and

(c)

the person has refused or failed to comply with the request or requirement,—

the Commissioner may, in making a formula assessment, estimate the taxable income derived by that person in the last relevant tax year.

(2)

[Repealed]

(3)

If—

(a)

the Commissioner has applied subsection (1) in making a formula assessment; and

(b)

the Commissioner subsequently ascertains the person’s taxable income for the last relevant tax year (whether or not an assessment has been made under the Income Tax Act 1976 or the Tax Administration Act 1994 in respect of that year),—

the Commissioner shall, as soon as practicable, amend the formula assessment on the basis that the person’s taxable income for the last relevant tax year is, and has always been, the subsequently ascertained taxable income.

Compare: Child Support (Assessment) Act 1989 s 58 (Aust)

Section 39(1): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 39(1)(a): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 39(1)(b): amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

Section 39(1)(b)(i): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 39(1)(b)(ii): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 39(2): repealed, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 39(3): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 39(3)(b): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 39(3)(b): amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

39A Commissioner may take overseas income into account

(1)

The Commissioner may, in making a formula assessment, take into account any income derived by a parent resident in a country outside New Zealand if the Commissioner is of the opinion that the income can be ascertained on the basis of information in the Commissioner’s possession.

(2)

For that purpose, the Commissioner may apply the provisions of this Act with such modifications as may be necessary.

(3)

Without limiting the generality of subsection (2), those modifications include modifications so that—

(a)
[Repealed]

(b)

references to “tax year” and “relevant tax year” are references to—

(i)

income periods of the relevant country that most appropriately correspond to the equivalent New Zealand periods; or

(ii)

such other periods as the Commissioner considers appropriate in the circumstances:

(c)
[Repealed]

(d)

section 38 applies in respect of assessments and amended assessments of income that are made by the government of the relevant country as if made by the Commissioner, if the Commissioner has information as to the assessment or amended assessment:

(e)

section 40 allows for elections to estimate income by a parent outside New Zealand:

(f)

section 44 allows for reconciliations of estimated and actual income derived by a parent outside New Zealand:

(g)

section 81 enables the Commissioner to require the parent to supply a return or estimate of the parent’s overseas income.

Section 39A: inserted, on 24 July 1999, by section 8 of the Child Support Amendment Act 1999 (1999 No 81).

Section 39A heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 39A(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 39A(3)(a): repealed, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 39A(3)(b): replaced, on 25 February 2016, by section 16(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 39A(3)(b): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 39A(3)(c): repealed, on 24 October 2001 (applying on first day of 2002–03 income year), by section 262(1) of the Taxation (Taxpayer Assessment and Miscellaneous Provisions) Act 2001 (2001 No 85).

Section 39A(3)(d): amended, on 25 February 2016, by section 16(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 39A(3)(e): amended, on 25 February 2016, by section 16(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 39A(3)(e): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 39A(3)(f): amended, on 25 February 2016, by section 16(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 39A(3)(f): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 39A(3)(g): amended, on 25 February 2016, by section 16(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 39A(3)(g): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Estimate of taxable income

Heading: inserted, on 1 April 2015, by section 13 of the Child Support Amendment Act 2013 (2013 No 12).

40AA Interpretation for purposes of sections 40 to 45

In sections 40 to 45, unless the context otherwise requires,—

annualised estimated taxable income means the amount that a person estimates will be their taxable income in an election period, annualised (if the estimate does not cover a full child support year) in accordance with the following formula:

(a ÷ b) × 365

where—

a

is the person’s estimated taxable income for the election period

b

is the number of days in the election period

election means an election, made by a person under section 40, to have the person’s estimated taxable income, instead of their income referred to in section 35(1)(a) or (b), applied for the purpose of calculating the person’s adjusted taxable income for an election period

election period, in relation to a child support year to which an election relates, means,—

(a)

if notice of the election is given under section 40 before the start of the child support year, the child support year; and

(b)

if notice of the election is given during the child support year, the period in the child support year that starts on the first day of the month in which the notice is given under section 40 and ends on the last day of the child support year

estimated taxable income means the amount specified in a notice of election given by a person under section 40 as the amount of taxable income that the person estimates that he or she will earn in the election period

original adjusted taxable income means the adjusted taxable income that would have been used to assess a person’s child support liability during an election period if the person had not made an election

year-to-date income means a person’s taxable income specified in a notice of election given under section 40 for the period beginning with the start of a child support year and ending with the end of the month immediately preceding the month in which the notice of an election is given.

Section 40AA: inserted, on 1 April 2015, by section 13 of the Child Support Amendment Act 2013 (2013 No 12).

Section 40AA election: amended, on 25 February 2016, by section 17(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 40AA original taxable income: repealed, on 25 February 2016, by section 17(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Election that child support income be based on estimated taxable income for current year[Repealed]

Heading: repealed, on 1 April 2015, by section 13 of the Child Support Amendment Act 2013 (2013 No 12).

40 Estimated taxable income

(1)

Any person may, by notice to the Commissioner given before or during a child support year, elect that the income to be used to assess their adjusted taxable income for an election period relating to that child support year must be the estimated taxable income specified in the notice of election.

(2)

The Commissioner, subject to subsections (4) and (6), must accept an election if the sum of the person’s year-to-date income (if any) and the person’s estimated taxable income is 85% or less than the person’s original adjusted taxable income.

(3)

A notice of election must,—

(a)

if notice of the election is given before the start of the child support year to which it relates, state the person’s estimated taxable income for the full child support year; or

(b)

if notice of the election is given during the child support year to which it relates, state—

(i)

the person’s year-to-date income; and

(ii)

the person’s estimated taxable income for the election period.

(4)

The Commissioner may not accept an election if—

(a)

an income amount order is in force in relation to the person, and to any months in the child support year in respect of which the election is to apply; or

(b)

the person is subject to an order of the court under section 187; or

(c)

the person has made an election within the previous 3 months, and the proposed new election would change the person’s annualised estimated taxable income by $500 or less; or

(d)

the person made an election in relation to an earlier child support year and was required to provide a return of income under the Income Tax Act 2007 or the Tax Administration Act 1994 in relation to that year, but, at the time the notice is given under this section, the person is in breach of the requirement to furnish a return of income in respect of that year; or

(e)

the person’s annualised estimated taxable income is more than their original adjusted taxable income.

(5)

A notice under this section may be given in any form acceptable to the Commissioner, and is to be treated by the Commissioner as having been given in the month in which it was sent or provided by the person making the election, even if it is received by the Commissioner in the following month.

(6)

The Commissioner may decline to accept an election if the person making the election does not, on request by the Commissioner, provide the information and evidence that the Commissioner requires in order to support the making of the estimate.

Section 40: replaced, on 1 April 2015, by section 13 of the Child Support Amendment Act 2013 (2013 No 12).

Section 40(1): amended, on 25 February 2016, by section 18(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 40(1): amended, on 1 April 2015, by section 208(1) of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

Section 40(1): amended, on 1 April 2015, by section 208(2) of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

Section 40(2): amended, on 25 February 2016, by section 18(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 40(4)(e): amended, on 25 February 2016, by section 18(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

41 Effect of election

(1)

If the Commissioner accepts an election made by a person, the Commissioner must determine the person’s adjusted taxable income by calculating the person’s annualised estimated taxable income.

(2)

The Commissioner must then adjust any formula assessment applying to the person during the election period and take whatever steps are necessary to ensure that the amount of child support payable per day during the election period reflects the adjusted assessment.

(3)

The making of an election does not prevent the Commissioner making a determination under Part 5A, 6A, or 6B, or the court making an order under Part 7.

Section 41: replaced, on 1 April 2015, by section 13 of the Child Support Amendment Act 2013 (2013 No 12).

Section 41(1): replaced, on 25 February 2016, by section 19 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

42 Revocation of election and subsequent elections

(1)

A person who has made an election in relation to a child support year may revoke the election, before or during the child support year, by giving notice to the Commissioner; and the revocation takes effect from the start of the election period to which any election applied.

(2)

If an election is in effect but the person then makes a later election,—

(a)

if the Commissioner accepts the later election,—

(i)

the later election takes effect from the start of the month in which the notice of election is given, and section 41 applies accordingly; and

(ii)

the earlier election ceases to have effect on the last day of the previous month:

(b)

if the Commissioner does not accept the later election because the amount of year-to-date taxable income plus the new estimated taxable income is more than 85% of the person’s original adjusted taxable income, then the earlier estimate is deemed to be revoked:

(c)

if the Commissioner does not accept the election for any other reason, the earlier estimate remains in effect.

(3)

A revocation is of no effect to the extent that it is inconsistent with an income amount order.

Section 42: replaced, on 1 April 2015, by section 13 of the Child Support Amendment Act 2013 (2013 No 12).

Section 42(2)(b): amended, on 25 February 2016, by section 20 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

43 Effect of revocation of election

(1)

When an election is revoked, or deemed to be revoked, the Commissioner must—

(a)

adjust any formula assessment applying to the person on the basis of the person’s original adjusted taxable income; and

(b)

take whatever steps are necessary to ensure that the amount of child support payable per day, during the election period to which the revoked election relates, reflects that adjusted assessment.

(2)

The revocation of an election does not prevent the Commissioner making a determination under Part 5A, 6A, or 6B, or the court making an order under Part 7, or a person making a further election.

Section 43: replaced, on 1 April 2015, by section 13 of the Child Support Amendment Act 2013 (2013 No 12).

44 End-of-year reconciliation

(1)

For the purpose of determining whether a person has, or has been, underpaid or overpaid child support in an election period, after the end of the child support year to which an election relates, the Commissioner must complete an assessment for the person treating the amount determined under subsection (2) as the person’s adjusted taxable income.

(2)

The amount to be treated as the person’s adjusted taxable income for the purposes of the assessment is,—

(a)

if the actual taxable income earned by the person during the year is equal to or less than the year-to-date income specified in the notice of election, nil; or

(b)

if the actual taxable income earned by the person during the year is more than the year-to-date income specified in the notice of election, the lesser of the following:

(i)

the person’s actual taxable income earned in the election period (which is the actual taxable income earned in the full year less the year-to-date income specified in a notice of election), annualised in accordance with the formula in subsection (3) (which gives the annualised actual taxable income in the election period):

(ii)

the person’s original adjusted taxable income.

(3)

The formula for annualising a person’s actual taxable income in an election period is—

(a ÷ b) × 365

where—

a

is the actual taxable income earned during the election period

b

is the number of days in the election period.

(4)

After comparing the result of the assessment done under subsection (1) with the results obtained under section 41, the Commissioner must take whatever steps are necessary to ensure that the correct amount of child support is assessed for the child support year.

(5)

A reconciliation under this section is subject to any income amount order that applies during all or any part of an election period.

Section 44: replaced, on 1 April 2015, by section 13 of the Child Support Amendment Act 2013 (2013 No 12).

Section 44(1): amended, on 25 February 2016, by section 21(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 44(2): replaced, on 1 April 2015, by section 209 of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

Section 44(2): amended, on 25 February 2016, by section 21(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 44(2)(a): amended, on 25 February 2016, by section 21(3) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 44(2)(b)(i): amended, on 25 February 2016, by section 21(4) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

44A Determining income amount if no tax return filed

(1)

This section applies if the Commissioner cannot determine the person’s actual taxable income during a child support year because the person, having been required to provide a return of income in respect of the tax year that corresponds to the child support year, has failed to provide it within 28 days of the requirement to provide it.

(2)

Where this section applies, the Commissioner must determine that the amount to be treated as the person’s adjusted taxable income for the purpose of the assessment under section 44(2) is the same as the person’s original adjusted taxable income, unless the Commissioner is satisfied that there is reasonable cause for the failure to provide the return of income.

(3)

A determination under subsection (2) is final unless, within 28 days after the person receives notification from the Commissioner of the determination, the person—

(a)

makes an objection under section 90; or

(b)

provides a return of income in respect of the relevant tax year to the Commissioner.

(4)

In subsection (2), reasonable cause means a circumstance that, on application being made by the person under section 37(3) of the Tax Administration Act 1994, results in the Commissioner extending the time for providing the return.

Section 44A: replaced, on 1 April 2015, by section 13 of the Child Support Amendment Act 2013 (2013 No 12).

Section 44A(2): amended, on 25 February 2016, by section 22 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Penalties for underestimation[Repealed]

Heading: repealed (with effect on 1 April 2015), on 25 February 2016, pursuant to section 23 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

45 Penalty if estimated income less than 80% of actual income
[Repealed]

Section 45: repealed (with effect on 1 April 2015), on 25 February 2016, by section 23 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

46 Interest to be charged on underestimations
[Repealed]

Section 46: repealed, on 24 July 1999, by section 17(1) of the Child Support Amendment Act 1999 (1999 No 81).

Part 3 Voluntary agreements

47 Application of this Part

(1)

This Part applies where either—

(a)

the parties to a voluntary agreement for child support in respect of a qualifying child; or

(b)

the parties to a voluntary agreement for domestic maintenance,—

want the Commissioner to administer the agreement in accordance with this Act.

(2)

The parties to a voluntary agreement for child support may be—

(a)

the parents of the child; or

(b)

a parent, or the parents, of the child and a carer of the child who is not the child’s parent.

(3)

The parties to a voluntary agreement for domestic maintenance may be—

(a)

a married couple or civil union partners; or

(b)

the parties to a marriage, civil union or de facto relationship that has ended; or

(c)

persons who are the parents of a child but who have never been in a marriage or civil union with each other.

(4)

If there is any other party to the agreement in relation to whom subsection (2) or subsection (3) does not apply, that party is to be disregarded for the purposes of the application of this Act to the voluntary agreement.

(5)

If the agreement is made in relation to any child other than a qualifying child, the other child is to be disregarded for the purposes of the application of this Act to the voluntary agreement.

Compare: Child Support (Assessment) Act 1989 s 80 (Aust)

Section 47(1)(b): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 47(2)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 47(3): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 47(3)(a): amended, on 19 August 2013, by section 9 of the Marriage (Definition of Marriage) Amendment Act 2013 (2013 No 20).

Section 47(3)(a): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 47(3)(b): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 47(3)(c): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Qualifying voluntary agreements

48 Voluntary agreements that qualify for acceptance

(1)

A voluntary agreement qualifies for acceptance by the Commissioner under this Act only if—

(a)

it is made either—

(i)

by any of the parties referred to in section 47(2) and requires the payment by one party of a periodical sum of money to a carer towards the maintenance of the qualifying child; or

(ii)

by any of the parties referred to in section 47(3) and requires the payment by one party of a periodical sum of money to the other party towards the maintenance of the other party; and

(b)

those periodic payments are in weekly, fortnightly, or monthly instalments and at a readily determined annual rate; and

(c)

each weekly instalment is not less than the minimum amount required by section 49; and

(d)

it is in writing and signed by the parties; and

(e)

nothing in section 50 or section 51 or section 52 disqualifies the agreement from acceptance by the Commissioner.

(2)

An agreement may qualify for acceptance whether it is entered into in or outside of New Zealand.

(3)

If the agreement also includes provisions of a kind not falling within subsection (1), those provisions do not have effect for the purposes of the application of this Act to the voluntary agreement.

(4)

An agreement entered into by a person who is a minor shall, for the purposes of this Act, have effect as if it were entered into by a person of full age.

Section 48(1)(a)(i): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

49 Minimum instalment required before agreement can be accepted

(1)

No voluntary agreement shall qualify for acceptance by the Commissioner under this Act unless each weekly instalment is not less than $10.

(2)

A document that contains more than 1 voluntary agreement for the purposes of this Act and that provides both—

(a)

for payments towards the support of 1 or more qualifying children; and

(b)

for payments towards the support of the other party,—

shall not qualify for acceptance by the Commissioner under this Act unless—

(c)

each weekly instalment in respect of the child or children is not less than $10; and

(d)

each weekly instalment in respect of the other party is not less than $10.

(3)

Notwithstanding subsections (1) and (2), the Commissioner may treat an agreement as qualifying for acceptance if—

(a)

2 or more voluntary agreements are made by the same parties providing for payments to be made in respect of 1 or more qualifying children; and

(b)

the sum of the weekly instalments payable under those agreements is not less than $10.

50 Exception where payee is social security beneficiary

Any voluntary agreement that provides for payments—

(a)

that are towards the support of a qualifying child; and

(b)

that are to be made to a person who is, or will be on the day on which the liability to make any such payment commences in terms of section 59, in receipt of a social security benefit,—

shall not qualify for acceptance by the Commissioner under this Act unless the annual rate at which those payments are to be made under the agreement is equal to or exceeds the annual rate that would be payable—

(c)

if the liability were assessed under a formula assessment; and

(d)

if the person by whom the payments are to be made were not entitled, under the formula assessment procedure, to make an election under section 40.

51 Exception in respect of child support voluntary agreement where formula assessment applies

Any voluntary agreement for child support shall not qualify for acceptance by the Commissioner under this Act if—

(a)

a formula assessment of child support applies in respect of the child; and

(b)

the Commissioner has not accepted an election under section 27 to end the formula assessment as it applies in respect of the child.

Section 51 heading: amended, on 25 February 2016, by section 24(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 51(a): amended, on 25 February 2016, by section 24(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 51(b): replaced, on 25 February 2016, by section 24(3) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

52 Exception in respect of spousal voluntary agreement where court order in force

Any voluntary agreement for domestic maintenance shall not qualify for acceptance by the Commissioner under this Act if a court order is in force requiring one party to the agreement to make payments towards the maintenance of the other party to the agreement.

Section 52: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

53 Dual-purpose voluntary agreements

(1)

If more than 1 voluntary agreement is made in the same document—

(a)

in respect of the maintenance of 1 or more qualifying children or parties to the agreement:

(b)

requiring payments by 2 or more parties to the agreement,—

the document may be treated as if it contained a separate agreement made for each payee by each payer.

(2)

If the agreement is also made in relation to any child other than a qualifying child, the other child is to be disregarded for the purposes of the application of this Act to the voluntary agreement.

Compare: Child Support (Assessment) Act 1989 s 87 (Aust)

54 Act not to affect other provisions of agreement

Nothing in this Part shall affect the operation of a voluntary agreement in relation, as the case may be,—

(a)

to any child other than a qualifying child; or

(b)

to any party referred to in section 47(4); or

(c)

to any provisions referred to in section 48(3).

Procedure on application for acceptance of voluntary agreements

55 Application requirements

(1)

An application for acceptance by the Commissioner of a voluntary agreement is properly made if—

(a)

it is made in respect of a qualifying voluntary agreement; and

(b)

it is signed—

(i)

in the case of a domestic maintenance agreement, by either party to the agreement:

(ii)

in any other case, by both the person by whom any money is to be paid under the agreement and the person to whom that money is to be so paid; and

(c)

the person by whom any money is to be paid, and the person to whom that money is to be paid, are both either New Zealand citizens or persons who are ordinarily resident in New Zealand; and

(d)

it is made to the Commissioner in the appropriate approved form; and

(da)

the tax file number (as defined in section YA 1 of the Income Tax Act 2007) of the qualifying child is provided; and

(e)
[Repealed]

(f)

it is verified as required by the form of application; and

(g)

it is accompanied by such documents (if any) as are required by the form of application to accompany the application.

(2)

Any document that accompanies the application must also be verified as required by the form of application.

Compare: Child Support (Assessment) Act 1989 s 89 (Aust)

Section 55(1)(b)(i): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 55(1)(da): inserted, on 7 October 1998, by section 4(1) of the Child Support Amendment Act 1998 (1998 No 103).

Section 55(1)(da): amended, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 55(1)(e): repealed, on 24 July 1999, by section 18 of the Child Support Amendment Act 1999 (1999 No 81).

56 Dual applications

If application is made on the same form for acceptance of 2 or more voluntary agreements made in relation to a qualifying child or 2 or more qualifying children (whether or not the agreements have been made in the same document), the form may be treated as if it contained separate applications for each of the agreements.

Compare: Child Support (Assessment) Act 1989 s 90 (Aust)

57 Decision on application

(1)

The Commissioner shall accept a voluntary agreement if satisfied that the application is properly made.

(2)

The Commissioner may refuse to accept the agreement if not satisfied that the application is properly made.

(3)

In determining whether an application is properly made, the Commissioner—

(a)

may act on the basis of the application and the documents accompanying the application and any other information in the Commissioner’s possession; and

(b)

is not required to conduct any enquiries or investigations into the matter.

Compare: Child Support (Assessment) Act 1989 ss 91, 92 (Aust)

58 Consequences of Commissioner accepting voluntary agreement

(1)

If the Commissioner accepts a voluntary agreement that provides for payments of money by a liable parent towards the support of a qualifying child,—

(a)

money payable in accordance with that agreement towards the support of that child is child support payable under this Act in relation to that child; and

(b)

the annual rate of child support payable by the liable parent in any child support year shall be the annual rate specified in the agreement in respect of that year; and

(c)

a person to whom the payments are to be made under the agreement is a person who is entitled to receive payment of child support in relation to the child in accordance with the agreement; and

(d)

a person by whom the payments are to be made under the agreement is a person who is liable to make payments of child support in relation to the child in accordance with the agreement; and

(e)

payment of child support is required to be made accordingly; and

(f)

the provisions of this Act relating to the collection and payment of financial support by the Commissioner shall apply.

(2)

If the Commissioner accepts a voluntary agreement that provides for payments of money by one party to the agreement towards the support of another party to the agreement,—

(a)

money payable in accordance with that agreement towards the support of that party is domestic maintenance payable under this Act towards the support of that party; and

(b)

the annual rate of domestic maintenance payable shall be the annual rate specified in the agreement in respect of that year; and

(c)

a person to whom the payments are to be made under the agreement is a person who is entitled to receive payment of domestic maintenance in accordance with the agreement; and

(d)

a person by whom the payments are to be made under the agreement is a person who is liable to make payments of domestic maintenance in accordance with the agreement; and

(e)

payment of domestic maintenance is required to be made accordingly; and

(f)

the provisions of this Act relating to the collection and payment by the Commissioner of financial support shall apply.

Compare: Child Support (Assessment) Act 1989 s 93 (Aust)

Section 58(2)(a): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 58(2)(b): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 58(2)(c): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 58(2)(d): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 58(2)(e): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

59 Commencement of liability under voluntary agreement

Where the Commissioner accepts a voluntary agreement, the child support or, as the case may be, the domestic maintenance, commences to be payable from whichever is the latest of—

(a)

the day on which the application is received by the Commissioner; or

(b)

if the application is refused under section 57(2), the day on which the application is properly made; or

(c)

the day on which, in accordance with the agreement, payment is to commence.

Section 59: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Procedure after acceptance or refusal of voluntary agreements

60 Duty to give notice of decision

(1)

If the Commissioner accepts, or refuses to accept, a voluntary agreement, the Commissioner shall, as soon as practicable, notify each party to the agreement in writing of the decision.

(2)

The notice must include, or be accompanied by, a statement that specifically draws the attention of the parties to the agreement to the right to object under section 90 to the decision of the Commissioner if he or she is aggrieved by the decision.

(3)

A contravention of subsection (2) in relation to a decision does not affect the validity of the decision.

Compare: Child Support (Assessment) Act 1989 s 96 (Aust)

61 Duty to make assessment

(1)

The Commissioner shall,—

(a)

as soon as practicable after the acceptance of a voluntary agreement,—

(i)

assess the annual rate of child support payable by the liable parent or, as the case may be, assess the annual rate of domestic maintenance payable by the liable spouse or partner, in relation to that child support year at the annual rate determined in accordance with the agreement in relation to that year; and

(ii)

where the application was made in the previous child support year, make such an assessment in relation to the previous child support year; and

(b)

before, or as soon as practicable after, the start of each later child support year in which child support or domestic maintenance continues to be payable under the voluntary agreement, assess the annual rate of child support payable by the liable parent or, as the case may be, assess the annual rate of domestic maintenance payable by the liable spouse or partner, in relation to that later child support year at the annual rate determined in accordance with the agreement in relation to that year.

(2)

If the Commissioner accepts a voluntary agreement which requires the payment of child support to be made in relation to a qualifying child and child support is already payable in respect of the child under a formula assessment, the Commissioner shall, as soon as practicable after the acceptance of the voluntary agreement, take such action as is necessary to give effect to that agreement, whether by amending any assessment of child support that has been made in relation to the child or otherwise.

(3)

Every assessment shall be made in accordance with Part 5.

Section 61(1)(a)(i): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 61(1)(b): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Termination of liability to make payments under voluntary agreements

62 When payments under voluntary agreement cease to be payable

(1)

A party to a voluntary agreement that has been accepted by the Commissioner under this Act shall cease to be liable under this Act to make payments under the agreement from whichever is the earliest of the following days:

(a)

in relation to an agreement for the payment of child support in respect of a qualifying child to a carer of the child,—

(i)

the day that the agreement expires:

(ii)

the day before the day on which the liable parent would cease to be liable to pay child support in respect of that child under section 25:

(iii)

the day before the day on which the agreement ceases to qualify for acceptance by the Commissioner in terms of section 48:

(iv)

the day before the day on which a notice of election under section 64 takes effect:

(b)

in relation to an agreement for the payment of domestic maintenance

(i)

the day that the agreement expires:

(ii)

the day before either party to the agreement becomes a person who is neither a New Zealand citizen nor a person who is ordinarily resident in New Zealand:

(iii)

the day before the day on which a notice of election under section 64 takes effect:

(iv)

the day before the day either party dies.

(2)

Nothing in this section affects the contractual liability of any party to a voluntary agreement.

Section 62(1)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 62(1)(b): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Variation of voluntary agreements

63 Voluntary agreement may be varied

(1)

If a voluntary agreement that has been accepted by the Commissioner is varied by the parties, the variation shall have no effect for any purpose of this Act unless an application is made to the Commissioner for acceptance of the variation.

(2)

The application must be—

(a)

made to the Commissioner in the appropriate approved form; and

(b)

signed by both the person by whom any money is to be paid under the agreement and the person to whom that money is to be so paid; and

(c)

verified as required in the form of application; and

(d)

accompanied by such documents (if any) as are required by the form of application to accompany the application.

(3)

A document that accompanies the application must also be verified as required by the form of application.

(4)

The provisions of sections 56 to 61 shall apply, with the necessary modifications, to an application for acceptance of a variation as if it were an application for acceptance of a voluntary agreement.

Compare: Child Support (Assessment) Act 1989 s 97 (Aust)

Miscellaneous provisions

64 Election to terminate liability under voluntary agreement

(1)

The person to whom child support or domestic maintenance is payable under a voluntary agreement that has been accepted by the Commissioner may, by written notice given to the Commissioner, elect that the liability of a person to pay child support or domestic maintenance under that agreement is to end from a specified future date.

(2)

The notice must be—

(a)

in the appropriate approved form; and

(b)

verified as required in the form of notice; and

(c)

accompanied by such documents (if any) as are required by the form of notice to accompany the notice.

(3)

A document that accompanies the notice must also be verified as required by the form of notice.

(4)

If any such election is made,—

(a)

nothing in this Part or any other provision of this Act shall apply to any money that becomes payable in accordance with the agreement after the date of the election; and

(b)

any money payable in accordance with the agreement after the date of the election may, without prejudice to any mode of recovery, be recovered by any person in any District Court.

(5)

An election made under subsection (1) shall be irrevocable.

Section 64(1): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

65 Child support voluntary agreement no bar to application for formula assessment

(1)

The existence of a voluntary agreement shall not prevent any party in relation to that agreement from applying to the Commissioner for formula assessment of child support under Part 1.

(2)

If a properly completed application for a formula assessment of child support in respect of the child to whom the agreement relates is completed, any person who, under the agreement, was a person to whom child support was payable is deemed—

(a)

to have elected under section 64 that the liability of the other party to the agreement to pay child support in respect of the child under the agreement is to end with the day before the day on which the formula assessment is to first apply; and

(b)

to have met the requirements of section 64(2) and (3).

Section 65(1): amended, on 1 April 2015, by section 210(1) of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

Section 65(2): replaced, on 1 April 2015, by section 210(2) of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

66 Voluntary agreement no bar to application for maintenance order under Family Proceedings Act 1980

(1)

The existence of a voluntary agreement that provides for payments of money by 1 party to the agreement towards the support of another party to the agreement shall not prevent that other party from applying under the Family Proceedings Act 1980 for a maintenance order.

(2)

Where a maintenance order under that Act is made against a party to the agreement for the maintenance of another party to the agreement, that other party is deemed—

(a)

to have elected under section 64 that the liability of the liable person to pay domestic maintenance under that agreement is to end with the day before the day on which the maintenance order is to first apply; and

(b)

to have met the requirements of subsections (2) and (3) of that section.

Section 66 heading: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 66(2)(a): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

66A Commissioner to give effect to orders made under Property (Relationships) Act 1976

If a court makes an order under section 32(2)(d) of the Property (Relationships) Act 1976 in relation to a voluntary agreement that has been accepted under this Part, the Commissioner must, as soon as practicable, take such action as is necessary to give effect to the order.

Section 66A: inserted, on 1 February 2002, by section 64(2) of the Property (Relationships) Amendment Act 2001 (2001 No 5).

Part 4 Court maintenance orders made after 1 July 1992

67 Application of this Part

This Part shall apply to—

(a)

any maintenance order or interim maintenance order made under Part 6 of the Family Proceedings Act 1980 on or after 1 July 1992 that provides for payments to be made at an annual rate of not less than $520:

(b)

any maintenance order made against any person by any court in a Commonwealth or designated country that has on or after 1 July 1992—

(i)

been registered in New Zealand under the Family Proceedings Act 1980; or

(ii)

been confirmed in New Zealand under that Act (other than an order confirmed under section 139 of that Act):

(c)

any order made pursuant to section 78 or section 81 of the Family Proceedings Act 1980 on or after 1 July 1992:

(d)

any order made under Part 6 or Part 8 of the Family Proceedings Act 1980 on or after 1 July 1992 in respect of an application under section 145 of that Act.

68 Effect of certain court orders

(1)

Where any order to which this Part applies provides for payments towards the support of any child,—

(a)

money payable in accordance with that order towards the support of that child is child support payable under this Act in relation to the child; and

(b)

the annual rate of child support payable by the liable parent in any child support year shall, if the annual rate is specified in the order in respect of that year, be that annual rate; and

(c)

a person to whom the payments are to be made under the order is a person who is entitled to receive payment of child support in relation to the child in accordance with the order; and

(d)

a person by whom the payments are to be made under the order is a person who is liable to make payments of child support in relation to the child in accordance with the order; and

(e)

payment of child support is required to be made accordingly; and

(f)

the provisions of this Act relating to the collection and payment of financial support by the Commissioner shall apply.

(2)

Where any order to which this Part applies provides for payments towards the support of any person other than a child,—

(a)

money payable in accordance with that order towards the support of that party is domestic maintenance payable under this Act towards the support of that party; and

(b)

the annual rate of domestic maintenance payable shall, if the annual rate is specified in the order in respect of that year, be that annual rate; and

(c)

a person to whom the payments are to be made under the order is a person who is entitled to receive payment of domestic maintenance in accordance with the order; and

(d)

a person by whom the payments are to be made under the order is a person who is liable to make payments of domestic maintenance in accordance with the order; and

(e)

payment of domestic maintenance is required to be made accordingly; and

(f)

the provisions of this Act relating to the collection and payment by the Commissioner of financial support shall apply.

Section 68(2)(a): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 68(2)(b): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 68(2)(c): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 68(2)(d): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 68(2)(e): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

69 Duty to make assessment

(1)

Where the Commissioner receives from the Registrar of any court a certified or sealed copy of an order to which this Part applies, or advice from the Chief Executive of the Ministry of Justice that any such order is in force, the Commissioner shall,—

(a)

as soon as practicable after the receipt thereof,—

(i)

assess the annual rate of child support or domestic maintenance payable by the liable person in relation to the child support year in which that order is so received at the annual rate specified in the order in relation to that year; and

(ii)

where the order came into force in the previous child support year, make such an assessment in relation to the previous child support year; and

(b)

before, or as soon as practicable after, the start of each later child support year in which child support or domestic maintenance continues to be payable under the order, assess the annual rate of child support or domestic maintenance payable by the liable person under this Act, in relation to that later child support year at the annual rate specified in the order in relation to that year.

(2)

Where the annual rate of child support or domestic maintenance is not specified in the order in relation to any child support year, the Commissioner shall determine the annual equivalent of the amount payable under the order and make the assessment at that rate.

(3)

Every assessment shall be made in accordance with Part 5.

Section 69(1): amended, on 1 October 2003, pursuant to section 14(2) of the State Sector Amendment Act 2003 (2003 No 41).

Section 69(1)(a)(i): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 69(1)(b): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 69(2): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

70 Election that Commissioner is not to enforce order

(1)

The person to whom any money is payable in accordance with any order to which this Part applies may, by written notice given to the Commissioner, elect that the order be one to which this Part does not apply.

(2)

The notice must be—

(a)

in the appropriate approved form; and

(b)

verified as required in the form of notice; and

(c)

accompanied by such documents (if any) as are required by the form of notice to accompany the notice.

(3)

If any such election is made,—

(a)

nothing in this Part or any other provision of this Act shall apply to any money that becomes payable in accordance with the order after the date of the election; and

(b)

any money payable in accordance with the order after the date of the election may, without prejudice to any mode of recovery, be enforceable in the same manner as a judgment given by the District Court in civil proceedings.

(4)

An election made under subsection (1) shall be irrevocable.

71 Period for which money payable under this Act

Any money payable under this Act in accordance with an order to which this Part applies is payable in relation to the days in the period commencing on the later of—

(a)

1 July 1992; and

(b)

the day on which the order comes into force,—

and ending with the earlier of the following days:

(c)

the day on which the order ceases to be in force; and

(d)

the day on which an election made under section 70 takes effect.

Part 5 Assessment of child support and domestic maintenance

Part 5 heading: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Minimum rate of child support or domestic maintenance

Heading: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

72 Minimum rate of child support or domestic maintenance

(1)

The minimum annual rate at which the Commissioner shall assess—

(a)

child support payable under a formula assessment by a liable parent in respect of all of his or her children is,—

(i)

for the child support year commencing on 1 April 2013, $871:

(ii)

for each later child support year, the minimum annual rate of child support under this paragraph for the immediately preceding child support year, adjusted by the applicable inflation percentage:

(b)

child support payable by a liable parent to a receiving carer under 1 or more voluntary agreements providing for payments to be made in respect of 1 or more children shall be, in the aggregate, $520 in respect of those children:

(c)

domestic maintenance shall be $520.

(2)

Subsection (1) applies notwithstanding anything to the contrary in any order of the court or in any voluntary agreement.

Section 72 heading: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 72(1)(a): replaced, on 1 April 2015, by section 14(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 72(1)(b): amended, on 1 April 2015, by section 14(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 72(1)(c): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Exemption in certain circumstances for prisoners and hospital patients[Repealed]

Heading: repealed, on 26 September 2006, by section 15 of the Child Support Amendment Act 2006 (2006 No 42).

73 Application for exemption by prisoner or hospital patient
[Repealed]

Section 73: repealed, on 26 September 2006, by section 15 of the Child Support Amendment Act 2006 (2006 No 42).

74 Effect of election
[Repealed]

Section 74: repealed, on 26 September 2006, by section 15 of the Child Support Amendment Act 2006 (2006 No 42).

75 End of exemption
[Repealed]

Section 75: repealed, on 26 September 2006, by section 15 of the Child Support Amendment Act 2006 (2006 No 42).

76 Prisoner or hospital patient to advise Commissioner if exemption ends
[Repealed]

Section 76: repealed, on 26 September 2006, by section 15 of the Child Support Amendment Act 2006 (2006 No 42).

Provisions relating to making of assessments

77 Assessment on basis of information supplied to Commissioner

For the purpose of determining liability under a formula assessment, or making an assessment of child support or domestic maintenance payable under this Act, the Commissioner may act on the basis of the documents and information in his or her possession, and is not required to conduct any enquiries or investigations into the matter or to require (under this Act or the Income Tax Act 2007 or the Tax Administration Act 1994 or otherwise) the supply of any information or the production of any document.

Compare: Child Support (Assessment) Act 1989 s 65 (Aust)

Section 77: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 77: amended, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 77: amended, on 1 April 1995 (applying with respect to tax on income derived in 1995–96 and subsequent income years), by section YB 1 of the Income Tax Act 1994 (1994 No 164).

78 Assessment to relate to all children for whom child support payable
[Repealed]

Section 78: repealed, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

79 Assessment to relate to whole or part of single child support year

An assessment of child support or domestic maintenance is to relate to all or part of a single child support year.

Compare: Child Support (Assessment) Act 1989 s 68 (Aust)

Section 79: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

80 Assessments for part of child support year

In making an assessment of child support or domestic maintenance payable in relation to the days of a period of less than a full child support year, the Commissioner may apply this Act as if the beginning and end of the period were respectively the beginning and end of a full child support year.

Compare: Child Support (Assessment) Act 1989 s 71 (Aust)

Section 80: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

81 Notification requirements of parent

(1)

The Commissioner may, for the purposes of assessing the amount of child support payable under a formula assessment, by written notice given to a person who is a parent of a qualifying child, require that person—

(a)

to notify the Commissioner, in writing, of information relating to that person’s living circumstances; and

(b)

where that person is a taxpayer who meets the requirements of section 33AA(1) of the Tax Administration Act 1994 in respect of the last relevant tax year, to either—

(i)

supply a return of income for the last relevant tax year; or

(ii)

supply an estimate of the income derived in the last relevant tax year; or

(iii)

supply an estimate of the income expected to be derived in the child support year.

(2)

Where the person supplies an estimate under subsection (1)(b)(iii), that person will be deemed to have made an election in terms of section 40.

(3)

[Repealed]

Section 81 heading: amended, on 1 April 2015, by section 211 of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

Section 81(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 81(1)(b): amended, on 1 April 2016, by section 239 of the Taxation (Annual Rates, Returns Filing, and Remedial Matters) Act 2012 (2012 No 88).

Section 81(1)(b): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 81(1)(b): amended (with effect on 1 April 1995, applying with respect to tax on income derived in 1995–96 and subsequent income years), on 10 May 1996, by section 55(1) of the Income Tax Act 1994 Amendment Act 1996 (1996 No 17).

Section 81(1)(b)(i): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 81(1)(b)(ii): amended, on 1 April 2005 (effective for 2005–06 tax year and later), by section YA 2 of the Income Tax Act 2004 (2004 No 35).

Section 81(2): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 81(3): repealed, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

82 Parents and receiving carers to advise Commissioner of changes

(1)

For the purpose of enabling the Commissioner to make or amend a calculation of child support payable in respect of a child in any child support year under a formula assessment, every parent and every receiving carer of the child must advise the Commissioner of any change in the parent’s or carer’s living circumstances occurring during the child support year that affects, or may affect, any of the following:

(a)

in relation to parents and non-parent carers, the determination of the person’s care cost percentage:

(b)

in relation only to parents, the following:

(i)

the person’s appropriate living allowance:

(ii)

the application or calculation of any dependent child allowance (if any):

(iii)

the application or calculation of any person’s multi-group allowance (if any):

(iv)

the application or calculation of any person’s multi-group cap (if applicable).

(2)

If the Commissioner is satisfied that a relevant change of living circumstances has occurred, the change is to be treated as having occurred—

(a)

on the date on which the change occurred, in any of the following cases:

(i)

in relation to a liable parent, where the change has the effect of increasing the amount of the parent’s child support liability:

(ii)

in relation to a receiving carer, where the change has the effect of decreasing the amount of child support payable in respect of that carer:

(iii)

where notice of the change is received by the Commissioner within 28 days after the date on which the change occurred; or

(b)

on the date on which the Commissioner receives notice of the change, in either of the following cases (unless paragraph (a)(iii) applies):

(i)

in relation to a liable parent, where the change has the effect of decreasing the amount of the parent’s child support liability:

(ii)

in relation to a receiving carer, where the change has the effect of increasing the amount of child support payable in respect of that carer.

(3)

Every notification of a change must be accompanied by such documentation as the Commissioner requires.

(4)

The Commissioner may disregard subsection (2), and may determine the date on which a particular change in living circumstances is to be treated as having occurred, in any case where 2 or more people give notice under this section relating to the same change, and the application of subsection (2) would result in the same change having to be treated as having occurred on different days in relation to different people.

Section 82: replaced, on 1 April 2015, by section 15 of the Child Support Amendment Act 2013 (2013 No 12).

83 Evidence relating to assessments

(1)

The production of a notice of assessment, or a document signed by the Commissioner or an officer of the Department that appears to be a copy of a notice of assessment, is conclusive evidence of the proper making of an assessment and, except in proceedings under sections 91 to 95, that all particulars of the notice of assessment are correct.

(2)

The production of a document signed by the Commissioner or an officer of the Department that appears to be a copy of, or an extract from, any notice of assessment is evidence of the matters in the document to the same extent as the original would be if it were produced.

Compare: Child Support (Assessment) Act 1989 s 70 (Aust)

Section 83(1): amended, on 23 September 1997, by section 4(1) of the Child Support Amendment Act (No 3) 1997 (1997 No 76).

Section 83(2): amended, on 23 September 1997, by section 4(2) of the Child Support Amendment Act (No 3) 1997 (1997 No 76).

84 Validity of assessments

Except in an objection under sections 91 to 95, the validity of an assessment is not affected by reason that any of the provisions of this Act have not been complied with.

Compare: Child Support (Assessment) Act 1989 s 72 (Aust)

85 Assumptions as to future events

In assessing the annual rate at which child support or domestic maintenance is payable in relation to a day in the future, the Commissioner may act on the assumption that the state of affairs known to the Commissioner at the time the assessment is made will remain unchanged on that day.

Compare: Child Support (Assessment) Act 1989 s 73 (Aust)

Section 85: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

86 Commissioner to give effect to changed circumstances

(1)

Where child support is payable in respect of a qualifying child and the Commissioner is notified, or otherwise becomes aware,—

(a)

that the liability of a liable parent to pay child support to a carer in respect of the child has ceased in accordance with section 25 or 62; or

(b)

that an event or change of circumstances has occurred that alters the respective liability or entitlement of any parent or carer of the qualifying child,—

the Commissioner shall, as soon as practicable, take such action as is necessary to take account of the event or change in circumstances (whether by amending any assessment or otherwise).

(2)

Where domestic maintenance is payable by a liable spouse or partner under a voluntary agreement or an order of the court and either—

(a)

payment is to cease, or the rate of payment is to reduce, on a particular day in accordance with that agreement or order; or

(b)

the Commissioner is notified, or otherwise becomes aware,—

(i)

of the death of either party to the agreement; or

(ii)

that an event or change of circumstances has occurred that affects the annual rate at which domestic maintenance is payable under this Act,—

the Commissioner shall, as soon as practicable, take such action as is necessary to take account of the event or change in circumstances (whether by amending any assessment or otherwise).

(3)

Nothing in subsection (1) or subsection (2) is to be taken to prevent the Commissioner from taking such action as the Commissioner considers appropriate to take account of the likely occurrence of an event or change of circumstances of which the Commissioner is notified or otherwise becomes aware (whether by amending any assessment or otherwise).

Compare: Child Support (Assessment) Act 1989 s 74 (Aust)

Section 86(1)(a): replaced, on 1 April 2015, by section 16 of the Child Support Amendment Act 2013 (2013 No 12).

Section 86(1)(b): replaced, on 1 April 2015, by section 16 of the Child Support Amendment Act 2013 (2013 No 12).

Section 86(2): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 86(2)(b)(ii): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

87 Amendment of assessments

(1)

The Commissioner may, at any time, amend any assessment by making such alterations and additions as the Commissioner considers necessary to give effect to this Act.

(2)

Subsection (1) has effect despite the fact that—

(a)

child support or, as the case may be, domestic maintenance has been paid under the assessment; or

(b)

the child support year, or the part of the child support year, to which the assessment relates has ended; or

(c)

proceedings are pending in a court having jurisdiction under this Act against or in relation to the assessment.

(3)

Without limiting subsection (1), the Commissioner may amend any assessment for the purpose of—

(a)

correcting any error or mistake (whether or not made by the Commissioner); or

(b)

correcting the effect of any false or misleading statement made to the Commissioner; or

(c)

giving effect to the happening of an event or change of circumstances to which the provisions of section 86 apply; or

(d)

giving effect to a formula assessment of child support by the Commissioner; or

(da)

giving effect to Part 5A; or

(e)

giving effect to the acceptance of a voluntary agreement by the Commissioner; or

(ea)

giving effect to a determination of the Commissioner under Part 6A or 6B; or

(f)

giving effect to a decision or order of a court under Part 7.

(4)

Where a provision of this Act expressly authorises the Commissioner to amend an assessment, that provision does not by implication limit the power of the Commissioner (whether under this section or otherwise) to amend the assessment.

(5)

Except as otherwise expressly provided in this Act, every amended assessment is to be taken to be an assessment for all the purposes of this Act.

(6)

In any case where—

(a)

child support or domestic maintenance payable under an amended assessment is increased after the due date; and

(b)

the Commissioner is satisfied that the matter giving rise to the increase did not result from any neglect or default by the person who is required to pay that child support or that domestic maintenance under the amended assessment,—

that person—

(c)

shall pay by the due date the amount that would have been payable if the increase had not taken effect; and

(d)

shall pay the amount of the increase within 30 days after the date of the amended assessment,—

and the Commissioner shall fix that date as the new due date for payment.

Compare: Child Support (Assessment) Act 1989 s 75 (Aust)

Section 87(2)(a): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 87(3)(d): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 87(3)(da): inserted, on 26 September 2006, by section 16(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 87(3)(ea): inserted (with effect on 1 July 1994), on 15 July 1994, by section 6(1) of the Child Support Amendment Act 1994 (1994 No 74).

Section 87(3)(ea): amended, on 26 September 2006, by section 16(2) of the Child Support Amendment Act 2006 (2006 No 42).

Section 87(6)(a): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 87(6)(b): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

88 Notice of assessment of formula assessment of child support

(1)

The Commissioner must give written notice (a notice of assessment) to each parent and receiving carer of a qualifying child—

(a)

as soon as practicable after making an assessment under section 29; and

(b)

after making any assessment that changes—

(i)

the amount of child support payable by a liable parent in respect of the child; or

(ii)

the respective amounts payable in respect of different receiving carers; and

(c)

at the beginning of each later child support year.

(2)

As a minimum, the notice of assessment must set out, in relation to each qualifying child to whom the notice relates, the matters identified in section 88A so far as they are relevant to the assessment as it applies in respect of the child.

(2A)

However, in no case may a notice of assessment reveal any more detail about another person who is a parent or carer than the person’s name (subject to subsection (5)) and, in relation to a qualifying child, the person’s proportion of care and care cost percentage.

(3)

Without limiting subsection (2), the notice of assessment must contain sufficient information to enable the recipient to exercise his or her rights to object under section 90 or 91.

(4)

The notice must also include, or be accompanied by, statements that specifically draw to the attention of the recipient the recipient’s right to—

(a)

object under section 90 or 91 if he or she is aggrieved by any of the particulars of the assessment; and

(b)

apply to the Commissioner under Part 6A; and

(c)

apply to a Family Court under Part 7.

(5)

Despite anything in this section, the Commissioner may omit from a notice of assessment or any related communication the name of any parent or carer if—

(a)

he or she is satisfied that revealing the name to the recipient of the notice would be prejudicial to the safety of any parent, carer, or child; or

(b)

the parent is deceased, or is a parent in respect of whom an assessment has not been made.

Section 88: replaced, on 1 April 2015, by section 17 of the Child Support Amendment Act 2013 (2013 No 12).

Section 88(2): replaced, on 25 February 2016, by section 25 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 88(2A): inserted, on 25 February 2016, by section 25 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

88A Details in notices of assessments

(1)

The matters referred to in section 88(2) for a notice of assessment given to a liable parent are as follows:

(a)

the child’s first names and date of birth:

(b)

the names of the child’s other parent (subject to section 88(5)):

(c)

the names of any non-parent receiving carers of the child (subject to section 88(5)):

(d)

the proportion of ongoing daily care that the Commissioner has established (under section 14) that the liable parent provides to the child:

(e)

the care cost percentage of the liable parent in relation to the child, as determined under section 16:

(f)

the liable parent’s adjusted taxable income or such other details as the Commissioner considers appropriate of any income of the liable parent taken into account in making the assessment:

(g)

the first names and date of birth of every dependent child (as defined in section 35B(3)) of the liable parent and the sum of any dependent child allowances to which the liable parent is entitled:

(h)

the amount of any multi-group allowance to which the liable parent is entitled:

(i)

the liable parent’s child support income amount in relation to the child:

(j)

the combined child support income amounts of the liable parent and the child’s other parent, in relation to the child:

(k)

the liable parent’s income percentage in relation to the child.

(2)

The matters referred to in section 88(2) for a notice of assessment given to a parent of a child who is a receiving carer are as follows:

(a)

the child’s first names and date of birth:

(b)

the names of the child’s liable parent or parents, and of any other parents (subject to section 88(5)):

(c)

the names of any non-parent receiving carers of the child (subject to section 88(5):

(d)

the proportion of ongoing daily care that the Commissioner has established (under section 14) that the parent provides to the child:

(e)

the care cost percentage of the parent in relation to the child, as determined under section 16:

(f)

the parent’s adjusted taxable income or such other details as the Commissioner considers appropriate of any income of the parent taken into account in making the assessment:

(g)

the first names and date of birth of every dependent child (as defined in section 35B(3)) of the parent and the sum of any dependent child allowances to which the parent is entitled:

(h)

the amount of any multi-group allowance to which the parent is entitled:

(i)

the parent’s child support income amount in relation to the child:

(j)

the combined child support income amounts of the parent and all the child’s other parents in relation to the child:

(k)

the parent’s income percentage in relation to the child.

(3)

The matters referred to in section 88(2) for a notice of assessment given to a non-parent receiving carer of a child are as follows:

(a)

the child’s first names and date of birth:

(b)

the names of the child’s liable parent or parents, and any other parent (subject to section 88(5)):

(c)

the names of any other non-parent receiving carers of the child (subject to section 88(5)):

(d)

the proportion of ongoing daily care that the Commissioner has established (under section 14) that the carer provides to the child:

(e)

the care cost percentage of the carer in relation to the child, as determined under section 16:

(f)

the expenditure on each child for whom the carer provides care, as determined by the relevant child expenditure table:

(g)

the amount of child support payable by the child’s liable parents in respect of the carer.

Section 88A: inserted, on 1 April 2015, by section 17 of the Child Support Amendment Act 2013 (2013 No 12).

Section 88A(1): amended, on 25 February 2016, by section 26(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 88A(1)(f): amended, on 25 February 2016, by section 26(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 88A(1)(g): amended, on 25 February 2016, by section 26(3) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 88A(2): amended, on 25 February 2016, by section 26(4) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 88A(2)(f): amended, on 25 February 2016, by section 26(5) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 88A(2)(g): amended, on 25 February 2016, by section 26(6) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 88A(3): amended, on 25 February 2016, by section 26(7) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

89 Notification by Commissioner to other payers and payees

(1)

The Commissioner must give written notice under this section to every person who is required under this Act to make payments, and every person entitled under this Act to receive payments, of—

(a)

domestic maintenance; or

(b)

child support under a voluntary agreement; or

(c)

child support under a court order.

(2)

The notice must set out—

(a)

the amount of domestic maintenance or child support payable; and

(b)

the name of the payer and the payee; and

(c)

in the case only of a notice relating to child support, the name of each child in respect of whom payment is to be made.

(3)

The notice must be given—

(a)

as soon as practicable after determining the amount payable in respect of a child support year; and

(b)

after making any assessment that changes the amount payable.

(4)

The notice must contain sufficient information to enable the recipient to exercise his or her rights to object under section 90 or 91.

(5)

The notice must also include, or be accompanied by, statements that specifically draw to the attention of the recipient his or her right to—

(a)

object under section 90 or 91 if he or she is aggrieved by any of the particulars of the assessment; and

(b)

apply to a Family Court under Part 7.

Section 89: replaced, on 1 April 2015, by section 17 of the Child Support Amendment Act 2013 (2013 No 12).

Part 5A Exemptions

Part 5A: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Subpart 1—Outline and definitions

Subpart 1: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89A Outline

(1)

This Part provides for exemptions from the payment of financial support in the following cases:

(a)

for hospital patients, in respect of periods of long-term hospitalisation, if certain income criteria are met:

(b)

for prisoners, in respect of periods of long-term imprisonment, if certain income criteria are met:

(c)

for liable parents under the age of 16 years, if certain income criteria are met:

(d)

for victims of sex offences, regardless of income.

(2)

This Part also allows the Commissioner to make determinations in relation to exemptions granted under this Act (except exemptions for victims of sex offences).

(3)

This section is intended only as a guide to the general scheme and effect of this Part.

Section 89A: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89B Definitions for this Part

In this Part, unless the context otherwise requires,—

exempted person means a person who has, under this Part, been exempted from the payment of financial support

hospital patient means a person who is, for the time being,—

(a)

a patient in a hospital care institution within the meaning of section 58(4) of the Health and Disability Services (Safety) Act 2001; or

(b)

a resident of an institution certified under the Alcoholism and Drug Addiction Act 1966

income

(a)

has the same meaning as in section YA 1 of the Income Tax Act 2007; and

(b)

includes gross income (within the meaning of section OB 1 of the Income Tax Act 1994 and the Income Tax Act 2004) and assessable income (within the meaning of the Income Tax Act 1976)

long-term means a period of 13 weeks or more

period of hospitalisation

(a)

means the continuous period during which a person is a hospital patient; and

(b)

includes any lawful absence of the person from the hospital for not more than 7 days, or any other period that is, in the opinion of the Commissioner, reasonable in the circumstances of the case

period of imprisonment

(a)

means the continuous period during which a person is a prisoner; and

(b)

includes any lawful absence of the person from the prison for not more than 7 days, or any other period that is, in the opinion of the Commissioner, reasonable in the circumstances of the case

prisoner means a person who is, for the time being,—

(a)

in the legal custody of the Superintendent of any penal institution as defined in the Penal Institutions Act 1954; or

(b)

in legal custody under the Corrections Act 2004

relevant minimum annual rate of financial support means, in relation to a child support year,—

(a)

for an exemption from child support payable under a formula assessment or under an order under section 109, the minimum annual rate for that year under section 72(1)(a):

(b)

for an exemption from any other child support payable under this Act or from domestic maintenance, $520

social security benefit means any benefit within the meaning of the Social Security Act 1964.

Section 89B: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 89B income paragraph (a): amended, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 89B income paragraph (b): amended, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Subpart 2—Exemptions for hospital patients, prisoners, and persons under 16 years

Subpart 2: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Exemption for hospital patients

Heading: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89C Exemption for long-term hospital patients

(1)

A liable person is eligible for an exemption from the payment of financial support for the whole, or part, of a long-term period of hospitalisation of that person if—

(a)

the person’s income for that whole period, or that part, will be or was nil, or will be or was calculated only from income consisting solely of—

(i)

income from investments; or

(ii)

a social security benefit payable to the person at the rate specified in Schedule 22 of the Social Security Act 1964; and

(b)

the person’s income from investments (if any) during that whole period, or that part, did not or will not—

(i)

exceed an average amount per week in that whole period, or that part, that is equal to the relevant minimum annual rate of financial support, divided by 52; and

(ii)

if that whole period, or that part, is 1 or more full child support years in duration, exceed, in a child support year in that whole period or that part, the relevant minimum annual rate of financial support; and

(c)

the person applies for the exemption in accordance with section 89H.

(1A)

For the purposes of subsection (1)(a), a liable person’s income during a period of long-term hospitalisation does not include any amounts received by the person during that hospitalisation for, or in respect of, any time up to and including the day on which the period of hospitalisation began.

(2)

This section is subject to sections 89F and 89G.

Section 89C: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 89C(1A): inserted, on 1 April 2014, by section 18 of the Child Support Amendment Act 2013 (2013 No 12).

Exemption for prisoners

Heading: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89D Exemption for long-term prisoners

(1)

A liable person is eligible for an exemption from the payment of financial support for the whole, or part, of a long-term period of imprisonment of that person if—

(a)

the person’s income for that whole period, or that part, will be or was nil, or will be or was calculated only from income consisting solely of income from investments; and

(b)

the person’s income from investments (if any) during that whole period, or that part, did not or will not—

(i)

exceed an average amount per week in that whole period, or that part, that is equal to the relevant minimum annual rate of financial support, divided by 52; and

(ii)

if that whole period, or that part, is 1 or more full child support years in duration, exceed, in a child support year in that whole period or that part, the relevant minimum annual rate of financial support; and

(c)

the person applies for the exemption in accordance with section 89H.

(1A)

For the purposes of subsection (1)(a), a liable person’s income during a period of long-term imprisonment does not include any amounts received by the person during that imprisonment for, or in respect of, any time up to and including the day on which the period of imprisonment began.

(2)

This section is subject to sections 89F and 89G.

Section 89D: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 89D(1A): inserted, on 1 April 2014, by section 19 of the Child Support Amendment Act 2013 (2013 No 12).

Exemption for persons under 16 years

Heading: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89E Exemption for persons under 16 years

(1)

A liable parent is eligible for an exemption from the payment of child support for the whole, or part, of the period before that person turned or turns 16 if—

(a)

the person’s income for that whole period, or that part, will be or was nil, or will be or was calculated only from income consisting solely of income from investments; and

(b)

the person’s income from investments (if any) during that whole period, or that part, did not or will not—

(i)

exceed an average amount per week in that whole period, or that part, that is equal to the relevant minimum annual rate of financial support, divided by 52; and

(ii)

if that whole period, or that part, is 1 or more full child support years in duration, exceed, in a child support year in that whole period or that part, the relevant minimum annual rate of financial support; and

(c)

the person applies for the exemption in accordance with section 89H.

(2)

This section is subject to sections 89F and 89G.

Section 89E: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Restrictions on application of exemptions

Heading: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89F Exemption does not apply at any time during child support year if income criteria not met at any time during relevant period

(1)

An exemption under this subpart does not apply at any time during the whole of a child support year if,—

(a)

at any time during the relevant period,—

(i)

in the case of an exemption under section 89C, the person receives any income (subject to section 89C(1A)) other than from investments or a social security benefit payable at the rate specified in Schedule 22 of the Social Security Act 1964; or

(ii)

in the case of an exemption under section 89D or 89E, the person receives any income (subject to sections 89C(1A) and 89D(1A)) other than from investments; or

(b)

the person receives income from investments during the relevant period that—

(i)

exceeds, if the relevant period is less than a full child support year in duration, an average amount per week in the relevant period that is equal to the relevant minimum annual rate of financial support, divided by 52; or

(ii)

exceeds, if the relevant period is a full child support year in duration, the relevant minimum annual rate of financial support.

(2)

However, in the case of an exemption under section 89C, if a liable person is receiving a higher rate benefit at the start of that person’s hospitalisation, that benefit does not prevent the exemption from applying after the person stops receiving that benefit for the whole or a part of the rest of the child support year in which that person became a hospital patient.

(3)

For the purposes of this section,—

higher rate benefit means a social security benefit payable at a rate higher than the rate specified in Schedule 22 of the Social Security Act 1964

relevant period, in relation to a child support year,—

(a)

in the case of an exemption under section 89C, means the period of hospitalisation that is in the child support year and during which the person would, but for an exemption under this subpart, be liable to pay financial support; and

(b)

in the case of an exemption under section 89D, means the period of imprisonment that is in the child support year and during which the person would, but for an exemption under this subpart, be liable to pay financial support; and

(c)

in the case of an exemption under section 89E, means the period before the person turns 16 that is in the child support year and during which the person would, but for an exemption under this subpart, be liable to pay child support.

Section 89F: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 89F(1)(a)(i): amended, on 1 April 2014, by section 19A(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 89F(1)(a)(ii): amended, on 1 April 2014, by section 19A(2) of the Child Support Amendment Act 2013 (2013 No 12).

89G Other restrictions on application of exemptions

(1)

An exemption under this subpart does not apply at any time after—

(a)

the day on which the relevant period of hospitalisation ends (in the case of an exemption under section 89C):

(b)

the day on which the relevant period of imprisonment ends (in the case of an exemption under section 89D):

(c)

the day on which the person turns 16 (in the case of an exemption under section 89E).

(2)

An exemption under this subpart does not apply to a period if the liable person is not eligible, or ceases to be eligible, for that exemption in relation to that period.

(3)

If an application for an exemption under—

(a)

section 89C is made under section 89H after the day on which the relevant period of hospitalisation ends, the exemption does not apply at any time before the commencement of this section:

(b)

section 89E is made under section 89H after the day on which the person turns 16, the exemption does not apply at any time before the commencement of this section.

Section 89G: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Application and grant of exemptions under this subpart

Heading: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89H Applications for exemptions under this subpart

(1)

An application for an exemption under this subpart must—

(a)

be in the appropriate approved form; and

(b)

be given to the Commissioner before—

(i)

the expiry of 3 months after the day on which the relevant period of hospitalisation ends (in the case of an application for an exemption under section 89C); or

(ii)

the relevant period of imprisonment ends (in the case of an application for an exemption under section 89D); or

(iii)

the expiry of 3 months after the day on which the person turns 16 (in the case of an application for an exemption under section 89E); and

(c)

specify the person’s estimate of his or her weekly and total income for the periods specified on the form; and

(d)

include the information that the approved form requires to be included.

(2)

An application for an exemption under—

(a)

section 89C may be made in relation to the whole of the long-term period of hospitalisation or 1 or more parts of that whole period:

(b)

section 89D may be made in relation to the whole of the long-term period of imprisonment or 1 or more parts of that whole period:

(c)

section 89E may be made in relation to the whole of the period before the person turns 16 or 1 or more parts of that whole period.

Section 89H: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89I Grant of exemption under this subpart

(1)

The Commissioner must, as soon as practicable after receiving an application for an exemption under this subpart in respect of a liable person, exempt the person from the payment of financial support under this Act for a period or periods if the Commissioner is satisfied that—

(a)

the application is made in accordance with section 89H; and

(b)

the estimates of income provided with the application are fair and reasonable; and

(c)

the person is eligible for an exemption under this subpart in relation to that period or those periods; and

(d)

the exemption is not prevented from applying to that period or those periods in accordance with section 89F or 89G.

(2)

In deciding under subsection (1) whether to grant an exemption to a person in relation to a future period, the Commissioner may act on the basis—

(a)

that the person’s income in that future period will be in accordance with the estimates provided in or with the application if the Commissioner is satisfied that the estimates are fair and reasonable; and

(b)

of any other assumptions as to future events that, in the opinion of the Commissioner, are reasonable in the circumstances of the case.

Section 89I: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89J Exempted person not entitled to refund

(1)

In this section, exemption excess means any amount of financial support paid to the Commissioner in relation to a person’s liability for a period or periods for which the person has been granted an exemption under this subpart.

(2)

A person who has been granted an exemption under this subpart—

(a)

is not entitled to a refund of the exemption excess; and

(b)

is not entitled to recover the exemption excess from the payee under section 207.

(3)

Nothing in sections 216 to 216D applies in relation to the exemption excess.

(4)

The Commissioner must, as soon as practicable after granting an exemption under this subpart, take the action that is necessary to—

(a)

give effect to subsection (2)(a); and

(b)

ensure that a refund of the exemption excess is not paid, and does not become payable, to the person concerned.

(5)

The Commissioner’s power to take action under subsection (4) includes, without limitation, the power to do any of the following:

(a)

apply the exemption excess (in whole or in part) to any unpaid financial support, unpaid penalty, or other charge imposed under this Act in relation to the person concerned:

(b)

hold the exemption excess (in whole or in part) and apply the amount held at some future time to a liability of the person concerned to make further payments of financial support:

(c)

amend any assessment.

Section 89J: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Subpart 3—Determinations in relation to exemptions for hospital patients, prisoners, and persons under 16 years

Subpart 3: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89K Commissioner may make determinations in relation to exemptions

(1)

The Commissioner may, in accordance with this subpart, make a determination having the effect that a specified exemption does not apply, or ceases to apply, in relation to the whole or a part of a period for which it was granted.

(2)

The Commissioner may, in accordance with this subpart, make a determination having the effect that all or some of the provisions of this Act relating to formula assessment of child support will be departed from in relation to a child if the Commissioner has made, or intends to make, a determination under subsection (1).

(3)

For the purposes of this subpart, specified exemption means—

(a)

an exemption granted under subpart 2:

(b)

an exemption granted under section 74 (as in force immediately before the commencement of this section).

Section 89K: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89L Application for determination

(1)

A payee may, by written application, ask the Commissioner to make a determination under this subpart.

(2)

An application under this section must set out the grounds on which the application is made.

(3)

The parties to the application are the liable person and the payee.

(4)

The determinations that the Commissioner may make under this subpart are not limited by the terms of the application.

Section 89L: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 89L(4): inserted, on 25 February 2016, by section 27 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

89M Determination that exemption does not apply or ceases to apply or determination confirming exemption

(1)

Subject to this subpart, the Commissioner may make a determination that a specified exemption does not apply, or ceases to apply, in relation to the whole or a part of a period for which it was granted if—

(a)

an application is made to the Commissioner under section 89L; and

(b)

the Commissioner is satisfied that the application in relation to the payee, the child, or both of the provisions of this Act relating to that exemption would result in an unjust and inequitable determination of the level of financial support to be provided by the liable person because of the income, earning capacity, property, and financial resources of the liable person.

(2)

If the Commissioner makes a determination under subsection (1) that a specified exemption does not apply, or ceases to apply, in relation to the whole or a part of a period for which it was granted, the liable person is liable to pay in relation to that whole or part of a period—

(a)

the amount of financial support that would otherwise have been payable but for the granting of the specified exemption; or

(b)

the amount of financial support determined in accordance with section 89N.

(3)

The following provisions apply, with necessary modifications, as if a determination under subsection (1) were an order:

(a)

section 106(4) (which relates to the period of time in which orders apply or when orders terminate):

(b)

section 107 (which relates to implementation of orders):

(c)

section 119(1)(a) (which relates to the cessation of orders).

(4)

The Commissioner may make a determination confirming that the specified exemption continues to apply to the whole or a part of a period for which it was granted if the Commissioner does not make a determination under subsection (1) in relation to that whole or part of a period.

Section 89M: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89N Determination that provisions of Act relating to formula assessment of child support will be departed from

(1)

Subject to this subpart, the Commissioner may make a determination that all or some of the provisions of this Act relating to formula assessment of child support will be departed from in relation to a child if—

(a)

the Commissioner has made, or intends to make, a determination under section 89M; and

(b)

the Commissioner is satisfied that—

(i)

the application in relation to the receiving carer, the child, or both of the provisions of this Act relating to formula assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of the income, earning capacity, property, and financial resources of the liable parent; and

(ii)

a determination under this section would be—

(A)

just and equitable as regards the child, the receiving carer, and the liable parent; and

(B)

otherwise proper.

(2)

Section 105(4) to (6) applies to the Commissioner in the exercise of his or her powers under this section as if—

(a)

any reference in those subsections to the court were a reference to the Commissioner; and

(b)

any reference in those subsections to an order were a reference to a determination under this section.

(3)

The Commissioner may make as a determination under this section any decision that the court could make as an order under section 106(1), and the following provisions apply, with necessary modifications, as if a determination under this section were an order:

(a)

section 98 (which sets the minimum liability in respect of child support):

(b)

section 106(2) to (4) (which relates to the orders that may be made):

(c)

section 107 (which relates to implementation of orders):

(d)

section 119(1)(a) (which relates to the cessation of orders).

Section 89N: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 89N(1)(b)(i): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 89N(1)(b)(ii)(A): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

89O Reasons for determination

(1)

The Commissioner must give all parties, in writing, the reasons for making a determination under this subpart.

(2)

A contravention of subsection (1) in relation to a determination does not affect the validity of the determination.

Section 89O: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 89O(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

89P Commissioner may refuse to make determination because issues too complex

(1)

If the Commissioner is satisfied, at any time after considering an application under this subpart, that the issues raised by the application are too complex to be dealt with under this subpart, the Commissioner may refuse to make the determination without taking any further action under this subpart.

(2)

The Commissioner must give the applicant, in writing, the reasons for refusing to make the determination.

Section 89P: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89Q Application disclosing no grounds for making determination: how dealt with

(1)

If the Commissioner is satisfied, after considering an application under this subpart, that there are no grounds for making a determination under this subpart, the Commissioner may refuse to make the determination without taking any further action under this subpart.

(2)

The Commissioner must give the applicant, in writing, the reasons for refusing to make the determination.

Section 89Q: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89R Other party to be notified

(1)

The Commissioner must notify the other party to the application under this subpart—

(a)

that an application has been made; and

(b)

that he or she may request a copy of the application and any accompanying documentation from the Commissioner; and

(c)

that he or she may make any representation (in this subpart called a reply) regarding the application that he or she considers relevant.

(2)

Any reply to an application must—

(a)

be in writing; and

(b)

be filed with the Commissioner—

(i)

within 14 days after the date on which the copy of the application and accompanying documentation is sent to the other party; or

(ii)

if no request is made for a copy of the application, within 14 days after the date on which the notification is sent.

(3)

The Commissioner must send a copy of the reply and any accompanying documentation to the applicant.

(4)

Nothing in this section applies if the Commissioner refuses to make a determination under section 89P, 89Q, or 89U.

Section 89R: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89S Procedure for dealing with application

(1)

In making a decision under this subpart in relation to an application, the Commissioner—

(a)

may act on the basis of the application and the reply (if any) and any other information in the Commissioner’s possession; and

(b)

may, but (subject to subsection (2)) is not required to, conduct any enquiries or investigations into the matter.

(2)

The Commissioner must give an opportunity to the applicant and the other party to the application to be heard by the Commissioner if they so wish.

(3)

Nothing in subsection (2)—

(a)

empowers the Commissioner to compel a party to an application to appear before the Commissioner in the presence of the other party; or

(b)

applies if the Commissioner refuses to make a determination under section 89P, 89Q, or 89U.

(4)

Despite subsection (2), if the other party to the application fails to file a reply or does not file a reply within the prescribed time, the Commissioner may refuse to hear that party.

(5)

Any hearing before the Commissioner, and any enquiry or investigation carried out by the Commissioner, is to be carried out as the Commissioner thinks fit and the Commissioner is not bound by any rules of evidence.

(6)

Nothing in section 125 (which relates to intervention in proceedings) applies to proceedings under this subpart.

Section 89S: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89T Circumstances in which representation or assistance at hearing may be approved

(1)

The following parties may be represented by a representative who is approved by the Commissioner:

(a)

the liable person:

(b)

the Crown, if the representative is an officer or employee of the Crown:

(c)

a minor, or other person under disability:

(d)

any other person, if the Commissioner is satisfied that for sufficient cause that person is unable to appear in person or is unable to present his or her case adequately.

(2)

No other party is entitled to be represented at a hearing by a representative unless it appears to the Commissioner to be proper in all the circumstances to so allow, and the Commissioner approves the representative.

(3)

No person proposed as a party’s representative may be approved unless the Commissioner is satisfied that the person proposed has sufficient knowledge of the case and sufficient authority to bind the party.

(4)

The Commissioner may permit any person nominated by a party to be present at the hearing and to assist the party in the presentation of his or her case if it appears to the Commissioner to be proper in all the circumstances to so permit, and the Commissioner approves the person.

(5)

No person approved by the Commissioner under subsection (4) is entitled to be heard at the hearing, and the Commissioner may exclude the person from the hearing at any time.

(6)

The Commissioner must not approve as a representative under subsection (1) or (2), or approve under subsection (4), any person who is, or has been, enrolled as a barrister and solicitor or who, in the opinion of the Commissioner, is or has been, regularly engaged in advocacy work before other tribunals.

(7)

If the Commissioner approves any person under subsection (1), (2), or (4), the Commissioner may impose in respect of the appointment or approval any conditions that the Commissioner considers necessary to ensure that any other party to the proceedings is not substantially disadvantaged by that appointment or approval.

Section 89T: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89U Subsequent applications

(1)

If a determination has been made under this subpart in respect of an exemption, another application may be made under this subpart in respect of that exemption only if the Commissioner, in his or her discretion, is satisfied, after considering the matters referred to in subsection (2), that a new matter has been submitted in support of the application that was not submitted in support of the previous application.

(2)

The matters to be considered are—

(a)

the current application and any accompanying documentation; and

(b)

the previous application and any accompanying documentation and any matter taken into account by the Commissioner in considering the previous application.

(3)

If the Commissioner is not satisfied of the matter referred to in subsection (1), the Commissioner may refuse to make a determination, without taking any further action under this subpart.

(4)

The Commissioner must give the applicant, in writing, the reasons for refusing to make the determination.

Section 89U: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89V Effect of pending applications

The fact that an application is made by any person under this subpart does not suspend, interfere with, or affect the application of the specified exemption concerned.

Section 89V: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89W Commencement of determinations

The Commissioner may, under this subpart, make a determination expressed to be retrospective to any day that the Commissioner considers appropriate, not being a day that precedes the start of the period of exemption.

Section 89W: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89X Restriction on publication of reports of proceedings

(1)

No person may, without the leave of the Commissioner or a Family Court, publish a report of any proceedings under this subpart.

(2)

The Commissioner or a Family Court may grant leave under subsection (1) with or without conditions.

(3)

Every person who contravenes subsection (1) commits an offence against this Act and is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 3 months, or to a fine not exceeding $2,000:

(b)

in the case of a body corporate, to a fine not exceeding $10,000.

(4)

Nothing in this section applies to the publication of any report in any publication that—

(a)

is of a bona fide professional or technical nature; and

(b)

is intended for circulation among members of the legal profession, employees of the Crown, relationship counsellors, mediators, or social workers.

(5)

Nothing in section 81 of the Tax Administration Act 1994 prevents the publication of a report of any proceedings under this subpart—

(a)

with the leave of the Commissioner or a Family Court; or

(b)

in accordance with subsection (4).

Section 89X: substituted, on 18 May 2009, by section 4 of the Child Support Amendment Act 2008 (2008 No 75).

Section 89X(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Subpart 4—Exemption for victims of sex offences

Subpart 4: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89Y Application for exemption on grounds relating to sex offence

(1)

A liable parent may, by notice in writing to the Commissioner, apply for an exemption from the payment of child support in relation to a particular child if—

(a)

either—

(i)

another person has been convicted of a sex offence; or

(ii)

another person has been proved to have committed a sex offence before a Youth Court; and

(b)

the liable parent is the victim of that sex offence; and

(c)

the liable parent believes that the child was conceived as a result of that sex offence.

(2)

For the purposes of this subpart,—

sex offence means an offence under sections 127 to 144C of the Crimes Act 1961

victim means, in relation to a sex offence, the person against whom the offence is committed by another person.

Section 89Y: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89Z Grant of exemption to victim of sex offence

(1)

The Commissioner must, as soon as practicable after receiving an application under section 89Y in respect of a liable parent and a particular child, exempt the person from the payment of child support in relation to that child if—

(a)

the application is made in accordance with that section; and

(b)

the Commissioner is satisfied that the liable parent is a victim of a sex offence; and

(c)

the Commissioner is satisfied that either—

(i)

another person has been convicted of that sex offence; or

(ii)

another person has been proved to have committed that sex offence before a Youth Court; and

(d)

in the opinion of the Commissioner, it is likely that the child was conceived as a result of that sex offence.

(2)

If the Commissioner grants an exemption under subsection (1), the period of exemption commences on the day on which the Commissioner received the application for the exemption.

(3)

However, the period of exemption commences on the day on which the Commissioner receives a properly completed application for formula assessment under Part 1 in relation to the child if—

(a)

that application for formula assessment was made on or after the day on which the person referred to in subsection (1)(c) was convicted of the sex offence or was proved to have committed the sex offence before a Youth Court; and

(b)

the liable parent made the application for the exemption under this subpart within 28 days after the date on which notice of the decision under section 17(1) was given by the Commissioner to the liable parent.

(4)

The Commissioner may, for the purpose of determining whether a person is eligible for an exemption under this section, obtain information from the Ministry of Justice, the New Zealand Police, or both in accordance with section 85K of the Tax Administration Act 1994.

Section 89Z: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 89Z(3): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

89ZA Exemption is void if conviction quashed or finding is reversed or set aside

(1)

An exemption granted under section 89Z(1) is void from the beginning if,—

(a)

in the case of an application that is based on a conviction for a sex offence, that conviction is quashed on appeal; or

(b)

in the case of an application that is based on a finding of a Youth Court that a sex offence has been proved to have been committed, that finding is reversed or set aside.

(2)

Subsection (1) does not prevent a liable parent from making a new application under section 89Y if, in the case of a conviction that is quashed,—

(a)

a court has directed a retrial in relation to the matter; and

(b)

a person has subsequently been convicted of the sex offence.

(3)

If, following that new application, an exemption is granted under section 89Z(1),—

(a)

the exemption commences on the date of conviction in relation to the retrial if the new application is received within 28 days after the date of conviction in relation to the retrial; or

(b)

in any other case, the exemption commences on the date the Commissioner received the new application for the exemption.

Section 89ZA: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Subpart 5—Miscellaneous provisions concerning exemptions

Subpart 5: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89ZB Commissioner must give effect to exemption and may take changes into account

(1)

The Commissioner must, as soon as practicable after granting an exemption under this Part, take the action that is necessary to give effect to the exemption (whether by revoking any assessment or otherwise).

(2)

The Commissioner must, as soon as practicable after being notified or otherwise becoming aware that an exemption under this Part does not apply for the whole or a part of a period for which the exemption was granted, take the action that is necessary to take that matter into account (whether by issuing or amending any assessment, amending any exemption, or otherwise).

(3)

Subsection (4) applies if 1 or more of the following applies:

(a)

the Commissioner has acted under section 89I(2) and the Commissioner is no longer satisfied that the estimates referred to in section 89I(2)(a) are fair and reasonable:

(b)

the Commissioner has acted under section 89I(2) and the Commissioner is no longer satisfied that the assumptions referred to in section 89I(2)(b) are reasonable in the circumstances of the case:

(c)

an exempted person’s income is not in accordance with the estimates provided in or with the application for the exemption.

(4)

The Commissioner may take the action that is necessary to take the matters referred to in subsection (3) into account (whether by issuing or amending any assessment, amending any exemption, or otherwise).

(5)

The Commissioner’s power to take action under subsections (2) and (4) includes, without limitation, the power to amend the period or periods for which an exemption was granted (whether that period or those periods are before or after the time that the Commissioner takes the action) in order to ensure that—

(a)

the exemption is granted for a period or periods in relation to which the exempted person is eligible for the exemption; and

(b)

the exemption is not granted for any period in relation to which the exemption must not apply in accordance with this Part.

(6)

Nothing in this section limits the powers of the Commissioner under sections 86 and 87.

Section 89ZB: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89ZC Exempted person must advise Commissioner of certain matters

(1)

This section applies if an exempted person—

(a)

receives any income that affects the application of the exemption in relation to the whole or a part of a period for which the exemption has been granted; or

(b)

receives more income than was disclosed in the estimates provided in or with the application for the exemption; or

(c)

otherwise becomes aware that an exemption does not apply for the whole or a part of a period for which the exemption has been granted.

(2)

The person must, as soon as practicable, notify the Commissioner of the matters referred to in subsection (1).

Section 89ZC: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89ZD Liable person liable for payment of financial support for parts of child support year to which exemption does not apply

A person to whom an exemption has been granted in respect of a part or parts of a child support year is liable for payment of financial support for the parts of the child support year to which the exemption does not apply, and the Commissioner must issue an assessment accordingly.

Section 89ZD: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

89ZE Applications by agents

(1)

A person who may apply for an exemption under this Part may do so by an agent authorised in writing by that person.

(2)

If a person is incapable of authorising an agent under subsection (1) to make an application on that person’s behalf,—

(a)

the manager of that person’s estate under the Protection of Personal and Property Rights Act 1988 may make the application; or

(b)

if there is no manager under paragraph (a), the next friend of the person may make the application.

Section 89ZE: inserted, on 26 September 2006, by section 17(1) of the Child Support Amendment Act 2006 (2006 No 42).

Part 6 Objections

90 Objections to appealable decisions

(1)

For the purposes of this Part, the term appealable decision means—

(a)

a decision to make, or refuse to make, a formula assessment of child support:

(b)

a decision under section 14 establishing the proportion of ongoing daily care that a carer provides to a qualifying child:

(ba)

a decision as to whether a particular child is or is not a dependent child of a person:

(bb)

a decision to accept an election under section 27:

(bc)

a decision not to accept an election under section 27 (including a decision to overturn the acceptance of an election under section 27(9)):

(c)

a decision not to accept an election made under section 40:

(ca)

a decision under section 44A to reconcile estimated income where no return of income is furnished under the Income Tax Act 2007 and the Tax Administration Act 1994:

(d)

a decision that a penalty has been imposed by operation of section 134:

(e)
[Repealed]

(f)

a decision under section 57(1) to accept an application for acceptance of an agreement:

(g)

a decision under section 57(2) to refuse to accept an application for acceptance of an agreement:

(h)

a decision under section 63 to accept, or to refuse to accept, an application for acceptance of a variation of an agreement:

(ha)

a decision made under section 82(4) determining the date on which a change in living circumstances occurred:

(i)

a decision under section 89I or 89Z not to grant an exemption from the payment of financial support:

(j)

a decision under section 86 or a refusal to make any such decision:

(ja)

a decision under section 96N to make, or to refuse to make, a suspension order:

(k)

a decision under section 216 that a person has, or is known to have at some future time, a liability to make further payments of financial support under this Act.

(2)

An objection may be made under this section by any person who is affected by the decision.

Section 90(1)(a): replaced, on 1 April 2015, by section 20(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 90(1)(b): replaced, on 1 April 2015, by section 20(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 90(1)(ba): inserted, on 1 April 2015, by section 20(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 90(1)(bb): inserted, on 25 February 2016, by section 28(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 90(1)(bc): inserted, on 25 February 2016, by section 28(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 90(1)(ca): inserted, on 24 July 1999, by section 23 of the Child Support Amendment Act 1999 (1999 No 81).

Section 90(1)(ca): amended, on 1 April 2008 (effective for 2008–09 income year and later), by section ZA 2(1) of the Income Tax Act 2007 (2007 No 97).

Section 90(1)(d): replaced, on 1 April 2015, by section 20(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 90(1)(d): amended, on 25 February 2016 (with effect on 1 April 2015), by section 28(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 90(1)(e): repealed, on 24 July 1999, by section 17(2) of the Child Support Amendment Act 1999 (1999 No 81).

Section 90(1)(ha): inserted, on 1 April 2015, by section 20(3) of the Child Support Amendment Act 2013 (2013 No 12).

Section 90(1)(i): amended, on 26 September 2006, by section 18 of the Child Support Amendment Act 2006 (2006 No 42).

Section 90(1)(ja): inserted (with effect on 1 July 1994), on 15 July 1994, by section 6(1) of the Child Support Amendment Act 1994 (1994 No 74).

91 Objections to assessments

(1)

An objection to an assessment, other than an amended assessment, may be made on any or all of the following grounds, but on no other ground:

(a)
[Repealed]

(b)

that the annual or monthly rate of financial support specified in the assessment has not been correctly calculated in accordance with this Act; or

(c)

that the assessment has incorrectly determined the days in relation to which the financial support is payable; or

(d)

that an annual rate of financial support specified in the assessment is not correctly assessed because the Commissioner has failed to give effect to any provision of this Act in relation to the assessment.

(1A)

An objection to an amended assessment may be made on any or all of the grounds listed in subsection (1)(b) to (d), but—

(a)

on no other ground; and

(b)

only if the matters covered by the objection are attributable to the amendment of the assessment.

(2)

An objection under this section may be made by any person to whom the Commissioner is required to give notice of the assessment under section 88 or 89.

(3)

[Repealed]

Compare: 1976 No 65 s 30

Section 91(1): amended, on 25 February 2016, by section 29(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 91(1)(a): repealed, on 1 April 2015, by section 21(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 91(1A): inserted, on 25 February 2016, by section 29(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 91(2): replaced, on 1 April 2015, by section 21(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 91(2): amended, on 25 February 2016, by section 29(3) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 91(3): repealed, on 25 February 2016, by section 29(4) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

92 Requirements in relation to objections

(1)

Every objection shall be delivered or posted to the Commissioner within 28 days after the date on which notice of the decision or assessment objected to was given by the Commissioner.

(2)

No notice of objection that is given after that time shall be of any force or effect unless the Commissioner, in the Commissioner’s discretion, accepts the same and gives notice to the objector accordingly.

(3)

Every notice of objection shall state fully and in detail the grounds of the person’s objection.

(3A)

[Repealed]

(4)

The Commissioner shall consider every objection that is properly made under this Act, and may alter the decision or the assessment, as the case may be, pursuant thereto.

Compare: Child Support Act 1988 s 82(2) (Aust)

Section 92(3A): repealed, on 1 April 2015, by section 212 of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

93 Notice of result of objection

The Commissioner shall, as soon as practicable, notify the objector in writing—

(a)

whether the objection has been allowed or disallowed:

(b)

in a case where the objection has been allowed in whole or in part, the effect of allowing the objection, or that part of it:

(c)

in a case where the objection has been disallowed in whole or in part, that the objector can appeal to a Family Court against that decision.

94 Determination of objection not to affect other assessments or decisions

The determination of an objection under this Part shall relate solely to the decision or assessment objected to, and shall not affect the right of the Commissioner to make any other decision or assessment in respect of the objector, or to amend the assessment objected to in a manner that is consistent with that determination.

Compare: 1985 No 141 s 39

95 Obligation to pay financial support where objection made

(1)

The obligation to pay, and the right of the Commissioner to receive and recover, any child support or domestic maintenance shall not be suspended by the making of any objection under this Part.

(2)

Subsection (1) does not apply in relation to a person if—

(a)

the person has made an appeal under section 102 in relation to a child; and

(b)

a ground of the appeal is that the person was not a parent of the child; and

(c)

there is not a final decision of a court determining that ground of the appeal.

(3)

Where an objection has been made under this Part but the objection has not been finally determined, the objector may apply to a Family Court for an order under section 117 that the liability imposed on the objector under this Act be suspended in whole or in part, pending the final determination of the objection, and the court may make such order (if any) as it thinks appropriate.

(4)

If, on the final determination of the objection, the court finds that the objector is liable to pay child support or domestic maintenance, that finding shall apply retrospectively to any period during which the liability was suspended, in whole or in part, under this section, unless the court for special reasons orders otherwise.

Section 95 heading: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 95(1): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 95(2)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 95(4): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

96 Objections to which this Part does not apply

This Part shall not confer any right of objection with respect to any matter (other than those to which section 90 and section 91 apply) which by any provision in this Act is left to the discretion, judgment, opinion, approval, consent, or determination of the Commissioner.

Compare: 1976 No 65 s 36

Part 6A Departure from formula assessment of child support initiated by liable parent or receiving carer

Part 6A: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

Part 6A heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Part 6A heading: amended, on 26 September 2006, by section 19 of the Child Support Amendment Act 2006 (2006 No 42).

96A Commissioner may make determination

The Commissioner may, in accordance with this Part, make a determination having the effect that all or some of the provisions of this Act relating to formula assessment of child support will be departed from in relation to a child.

Compare: Child Support (Assessment) Act 1989 s 98A (Aust); Child Support Legislation Amendment Act 1992 s 5 (Aust)

Section 96A: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

96B Application for determination

(1)

Any liable parent or receiving carer of a qualifying child may, by written application, ask the Commissioner to make a determination under this Part.

(2)

An application may be made—

(a)

only if a formula assessment is in force in relation to the child; and

(b)

only in relation to child support payable in the child support year commencing on 1 April 1994 or any later child support year; and

(c)

subject to section 96L.

(3)

The parties to the application are—

(a)

the applicant; and

(b)

every other liable parent or receiving carer of the qualifying child.

Compare: Child Support (Assessment) Act 1989 s 98B (Aust); Child Support Legislation Amendment Act 1992 s 5 (Aust)

Section 96B: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

Section 96B(1): amended, on 1 April 2015, by section 22A(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 96B(2)(a): amended, on 1 April 2015, by section 22A(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 96B(3): replaced, on 1 April 2015, by section 22A(3) of the Child Support Amendment Act 2013 (2013 No 12).

96C Matters as to which Commissioner must be satisfied before making determination

(1)

Subject to this Part, if—

(a)

an application is made to the Commissioner under section 96B; and

(b)

the Commissioner is satisfied that—

(i)

1 or more of the grounds for departure referred to in subsection (2) exists or exist; and

(ii)

it would be—

(A)

just and equitable as regards the child and all parties to the application; and

(B)

otherwise proper,—

to make a particular determination under this Part,—

the Commissioner may make the determination.

(2)

For the purposes of subsection (1)(b)(i),—

(a)

the grounds for departure are the same as the grounds for departure set out in section 105(2); and

(b)

section 105(2)(b)(i) has effect subject to section 105(3); and

(c)

section 105(2)(d) has effect subject to section 105(3D).

(3)

Subsections (3C) and (4) to (6) of section 105 apply to the Commissioner in the exercise of his or her powers under this section as if—

(a)

any reference in those subsections to the court were a reference to the Commissioner; and

(b)

any reference to an order were a reference to a determination.

Compare: Child Support (Assessment) Act 1989 s 98C (Aust); Child Support Legislation Amendment Act 1992 s 5 (Aust)

Section 96C: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

Section 96C(1)(b)(ii)(A): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96C(2)(b): amended, on 25 February 2016, by section 30(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96C(2)(c): inserted, on 25 February 2016, by section 30(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96C(3): amended, on 25 February 2016, by section 30(3) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

96D Determinations that may be made

(1)

The Commissioner may make as a determination under this Part any decision that the court could make as an order under section 106(1), and the following provisions shall apply, with necessary modifications, as if a determination were an order:

(a)

section 98 (which sets the minimum liability in respect of child support):

(b)

section 106(2) to (4) (which relate to the orders that may be made):

(ba)

section 106A (further provision on orders for re-establishment costs situations if income increases):

(bb)

section 106B (further provision on orders for offsetting of liabilities situations):

(c)

section 107 (which relates to implementation of orders):

(d)

section 119(1)(a) (which relates to the cessation of orders).

(1A)

The determinations that the Commissioner may make under subsection (1) are not limited by the terms of the application under section 96B.

(2)

The Commissioner shall give each party, in writing, the reasons for making the determination (including the reasons for which the Commissioner is satisfied as required by section 105(1)).

(3)

A contravention of subsection (2) in relation to a determination does not affect the validity of the determination.

Compare: Child Support (Assessment) Act 1989 s 98D (Aust); Child Support Legislation Amendment Act 1992 s 5 (Aust)

Section 96D: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

Section 96D(1)(ba): inserted, on 25 February 2016, by section 31(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96D(1)(bb): inserted, on 1 April 2016, by section 31(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96D(1)(d): added, on 26 September 2006, by section 20 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96D(1A): inserted, on 25 February 2016, by section 31(3) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96D(2): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

96E Requirements for application

An application under section 96B must—

(a)

be in writing; and

(b)

set out the grounds on which the application is made.

Compare: Child Support (Assessment) Act 1989 s 98E (Aust); Child Support Legislation Amendment Act 1992 s 5 (Aust)

Section 96E: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

96F Commissioner may refuse to make determination because issues too complex

(1)

If the Commissioner is satisfied, at any time after considering the application, that the issues raised by the application are too complex to be dealt with under this Part, the Commissioner may refuse to make the determination without taking any further action under this Part, and recommend that application be made to the court for an order under Part 7.

(2)

The Commissioner shall give the applicant, in writing, the reasons for refusing to make the determination.

Compare: Child Support (Assessment) Act 1989 s 98EA (Aust); Child Support Legislation Amendment Act (No 2) 1992 s 23 (Aust)

Section 96F: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

96G Application disclosing no grounds, etc, for making determination—how dealt with

(1)

If the Commissioner is satisfied, after considering the application, that—

(a)

there are no grounds for departing from the provisions of this Act relating to formula assessment of child support in relation to the child concerned; or

(b)

that the application seeks to reduce an assessment that has been set at the minimum liability,—

the Commissioner may refuse to make the determination without taking any further action under this Part.

(2)

The Commissioner shall give the applicant, in writing, the reasons for refusing to make the determination.

Compare: Child Support (Assessment) Act 1989 s 98F (Aust); Child Support Legislation Amendment Act 1992 s 5 (Aust)

Section 96G: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

96H Other parties to be notified

(1)

The Commissioner shall notify each other party to the application—

(a)

that an application has been made, and a summary of the grounds on which the application has been made; and

(b)

that he or she may request a copy of the application and any accompanying documentation from the Commissioner; and

(c)

that he or she may make any representation (in this Part called a reply) regarding the application that he or she considers relevant.

(2)

Any reply to an application must—

(a)

be in writing; and

(b)

be filed with the Commissioner—

(i)

within 14 days after the date on which the copy of the application and accompanying documentation is sent to the party; or

(ii)

if no request is made for a copy of the application, within 14 days after the date on which the notification is sent.

(3)

The Commissioner must send a copy of any reply and accompanying documentation to the applicant, and may send a copy of any reply and accompanying documentation to the other parties.

(4)

Nothing in this section applies where the Commissioner refuses to make a determination under section 96F or section 96G or section 96L(5).

Compare: Child Support (Assessment) Act 1989 s 98G (Aust); Child Support Legislation Amendment Act 1992 s 5 (Aust); Child Support Legislation Amendment Act (No 2) 1992 s 24

Section 96H: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

Section 96H heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96H(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96H(2)(b)(i): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96H(3): replaced, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96H(4): amended, on 26 September 2006, by section 21 of the Child Support Amendment Act 2006 (2006 No 42).

96I Procedure for dealing with application

(1)

In making a decision under this Part in relation to an application, the Commissioner—

(a)

may act on the basis of the application and any reply received and any other information in the Commissioner’s possession; and

(b)

may, but (subject to subsection (2)) is not required to, conduct any enquiries or investigations into the matter.

(2)

The Commissioner shall give an opportunity to the applicant and each other party to the application to appear before the Commissioner, and be heard by him or her, if they so wish.

(3)

Nothing in subsection (2)—

(a)

empowers the Commissioner to compel a party to an application to appear before the Commissioner in the presence of any other party; or

(b)

applies where the Commissioner refuses to make a determination under section 96F or section 96G or section 96L(5).

(4)

Notwithstanding subsection (2), where any other party to the application fails to file a reply or does not file a reply within the prescribed time, the Commissioner may refuse to hear that party.

(5)

Any hearing before the Commissioner, and any enquiry or investigation carried out by the Commissioner, is to be carried out as the Commissioner thinks fit and the Commissioner is not bound by any rules of evidence.

(6)

Nothing in section 125 (which relates to intervention in proceedings) shall apply to proceedings under this Part.

Compare: Child Support (Assessment) Act 1989 s 98H (Aust); Child Support Legislation Amendment Act 1992 s 5 (Aust)

Section 96I: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

Section 96I(1)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96I(2): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96I(3)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96I(3)(b): amended, on 26 September 2006, by section 22 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96I(4): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

96J Circumstances in which representation or assistance at hearing may be approved

(1)

Subject to subsection (2), no party shall be entitled to be represented at a hearing by a representative unless it appears to the Commissioner to be proper in all the circumstances to so allow, and the Commissioner approves such representative.

(2)

The following parties may be represented by a representative who is approved by the Commissioner:

(a)

the Crown, if the representative is an officer or employee of the Crown:

(b)

a minor, or other person under disability:

(c)

any other person, if the Commissioner is satisfied that for sufficient cause that person is unable to appear in person or is unable to present his or her case adequately.

(3)

No person proposed as a party’s representative shall be approved unless the Commissioner is satisfied that the person proposed has sufficient knowledge of the case and sufficient authority to bind the party.

(4)

The Commissioner may permit any person nominated by a party to be present at the hearing and to assist the party in the presentation of his or her case if it appears to the Commissioner to be proper in all the circumstances to so permit, and the Commissioner approves such person.

(5)

No person approved by the Commissioner under subsection (4) shall be entitled to be heard at the hearing, and the Commissioner may exclude any such person from the hearing at any time.

(6)

The Commissioner shall not—

(a)

approve as a representative under subsection (1) or subsection (2); or

(b)

approve under subsection (4)—

any person who is, or has been, enrolled as a barrister and solicitor, or who, in the opinion of the Commissioner is, or has been, regularly engaged in advocacy work before other tribunals.

(7)

Where the Commissioner approves any person under subsection (1) or subsection (2) or subsection (4), the Commissioner may impose in respect of any such appointment or approval such conditions as the Commissioner considers necessary to ensure that any other party to the proceedings is not substantially disadvantaged by that appointment or approval.

Compare: 1988 No 110 s 38(2)–(8)

Section 96J: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

96K Child support agreements entered into before determination made

The Commissioner may not make a determination under this Part in relation to an application if, while the application is pending, the parties enter into an agreement in relation to the child support payable for the child in relation to whom the determination was sought and either—

(a)

the agreement is a qualifying voluntary agreement that is accepted by the Commissioner under Part 3; or

(b)

an election is made in accordance with section 27 to end the liability of the liable parent to pay child support in respect of the child under a formula assessment.

Section 96K: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

96L Subsequent applications

(1)

This section applies to a formula assessment of child support if—

(a)

a determination has been made in connection with that formula assessment under this Part or Part 6B; or

(b)

an appeal has been heard by a Family Court under section 103B or 103C in connection with that formula assessment; or

(c)

an application has been heard by a Family Court under section 104 in connection with that formula assessment.

(2)

An application may be made under this Part in connection with a formula assessment to which this section applies only if the Commissioner is satisfied, in his or her discretion, after considering the matters referred to in subsection (3), that either—

(a)

a new matter has been submitted in support of that application that was not considered in relation to the previous application, determination, or appeal; or

(b)

the application is made on a ground for departing from the formula assessment that is different from the ground or grounds that were considered in relation to the previous application, determination, or appeal.

(3)

The matters to be considered are—

(a)

the current application and any accompanying documentation; and

(b)

any matter taken into account by the Commissioner or the court in the course of considering the previous application, determination, or appeal.

(4)

The Commissioner is required to take into account the matters specified in subsection (3) only to the extent that the Commissioner has knowledge of those matters.

(5)

If the Commissioner is not satisfied of the matters of which the Commissioner is required to be satisfied under this section, the Commissioner may refuse to make a determination without taking any further action under this Part.

(6)

The Commissioner must give the applicant, in writing, the reasons for refusing to make the determination.

Section 96L: substituted, on 26 September 2006, by section 23 of the Child Support Amendment Act 2006 (2006 No 42).

96M Effect of pending applications

Subject to section 96N, the fact that an application is made by any person under this Part does not suspend, interfere with, or affect—

(a)

any formula assessment made in relation to the person; or

(b)

the obligation to pay child support; or

(c)

the right of the Commissioner to receive and recover child support.

Compare: Child Support (Assessment) Act 1989 s 98M (Aust); Child Support Legislation Amendment Act (No 2) 1992 s 25 (Aust)

Section 96M: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

96N Suspension of liabilities

(1)

When an application has been made under this Part, a party to the application may apply to the Commissioner for a suspension order, and section 117 shall apply with necessary modifications as if references to the court were references to the Commissioner.

(2)

The Commissioner shall not make a suspension order under this section—

(a)

unless the Commissioner is satisfied that the making of a determination is likely to be unusually delayed; and

(b)

until the time for filing a reply has expired.

Section 96N: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

96O Commencement of determinations

The Commissioner may, under this Part, make a determination expressed to be retrospective to such day as the Commissioner considers appropriate, not being a day that precedes the later of—

(a)

1 April 1994; or

(b)

the day on which the application for formula assessment to which the determination applies was made.

Section 96O: inserted (with effect on 1 July 1994), on 15 July 1994, by section 5(1) of the Child Support Amendment Act 1994 (1994 No 74).

96P Restriction on publication of reports of proceedings

(1)

No person may, without the leave of the Commissioner or a Family Court, publish a report of any proceedings under this Part.

(2)

The Commissioner or a Family Court may grant leave under subsection (1) with or without conditions.

(3)

Every person who contravenes subsection (1) commits an offence against this Act and is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 3 months, or to a fine not exceeding $2,000:

(b)

in the case of a body corporate, to a fine not exceeding $10,000.

(4)

Nothing in this section applies to the publication of any report in any publication that—

(a)

is of a bona fide professional or technical nature; and

(b)

is intended for circulation among members of the legal profession, employees of the Crown, relationship counsellors, mediators, or social workers.

(5)

Nothing in section 81 of the Tax Administration Act 1994 prevents the publication of a report of any proceedings under this Part—

(a)

with the leave of the Commissioner or a Family Court; or

(b)

in accordance with subsection (4).

Section 96P: substituted, on 18 May 2009, by section 5 of the Child Support Amendment Act 2008 (2008 No 75).

Section 96P(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

Part 6B Departure from formula assessment of child support initiated by Commissioner

Part 6B: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

96Q Commissioner may make determination under this Part

(1)

The Commissioner may, in accordance with this Part, make a determination having the effect that all or some of the provisions of this Act relating to formula assessment of child support will be departed from in relation to a child.

(2)

The parties to proceedings under this Part are—

(a)

the parent (who may, but need not, be a liable parent) who is the subject of a review under this Part (the subject parent); and

(b)

any receiving carer, whether a parent or non-parent, of the child who elects, under section 96Y, to become a party; and

(c)

a liable parent who is not the subject parent, but who elects, under section 96Y, to become a party.

Section 96Q: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96Q(2): replaced, on 1 April 2015, by section 23 of the Child Support Amendment Act 2013 (2013 No 12).

96R Matters that Commissioner must be satisfied of before making determination

(1)

Subject to this Part, the Commissioner may make a determination under this Part if the Commissioner is satisfied that,—

(a)

by virtue of special circumstances, application in relation to the child of the provisions of this Act relating to formula assessment of child support would result in an unjust and inequitable determination of the level of child support to be provided by the liable parent for the child because of the income, earning capacity, property, and financial resources of either parent or the child; and

(b)

a determination under this Part would be—

(i)

just and equitable as regards the child, the receiving carer, and the liable parent; and

(ii)

otherwise proper.

(2)

Section 105(4) to (6) applies to the Commissioner in the exercise of his or her powers under this section as if—

(a)

any reference in those subsections to the court were a reference to the Commissioner; and

(b)

any reference in those subsections to an order were a reference to a determination under this Part.

Section 96R: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96R(1)(b)(i): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

96S Commissioner may make preliminary enquiries

(1)

The Commissioner may conduct a preliminary enquiry or investigation with a view to considering whether a determination under this Part may be appropriate.

(2)

For the purposes of this section, the Commissioner—

(a)

may act on the basis of any information in the Commissioner’s possession; and

(b)

may make any enquiries or investigations the Commissioner considers necessary.

Section 96S: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

96T Notice to subject parent giving chance to respond

If the Commissioner is satisfied that there are reasonable grounds to believe that a determination under this Part may be appropriate, the Commissioner must—

(a)

notify the subject parent; and

(b)

send to the subject parent a statement of reasons as to why the Commissioner is satisfied that a determination under this Part may be appropriate; and

(c)

notify the subject parent that he or she may make a written response.

Section 96T: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96T heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96T(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96T(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96T(c): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

96U Written response by subject parent

(1)

A subject parent may respond in writing to a notification by the Commissioner under section 96T.

(2)

A written response under this section must be—

(a)

made to the Commissioner in a manner specified by the Commissioner; and

(b)

filed with the Commissioner within 28 days after the date the subject parent is sent notification under section 96T.

Section 96U: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96U heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96U(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96U(2)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

96V Decision by Commissioner to start proceedings under this Part

As soon as practicable after the expiry of the period referred to in section 96U(2)(b), the Commissioner must—

(a)

consider any written response filed by the subject parent; and

(b)

decide whether to start proceedings under this Part.

Section 96V: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96V(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

96W Commissioner to notify subject parent

(1)

The Commissioner must notify the subject parent, in writing, as to whether the Commissioner has decided to start proceedings under this Part.

(2)

If the Commissioner decides to start proceedings under this Part, the Commissioner must also—

(a)

notify the subject parent with the rights of the subject parent and of any receiving carer or liable parent who elects to become a party under section 96Y to make written representations and receive information in accordance with section 96Z; and

(b)

provide the subject parent with a summary of the information on which the Commissioner has based his or her decision.

Section 96W: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96W heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96W(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96W(2)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96W(2)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

96X Commissioner to notify receiving carers and liable parent with rights of election under section 96Y

If the Commissioner decides to start proceedings under this Part, the Commissioner must notify the receiving carers and any liable parent who is not the subject parent, in writing, of—

(a)

the Commissioner’s decision; and

(b)

the receiving carer’s or liable parent’s rights of election under section 96Y; and

(c)

the rights of the subject parent and of any receiving carer or liable parent who has rights of election under section 96Y to make written representations and receive information in accordance with section 96Z.

Section 96X: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96X heading: amended, on 25 February 2016, by section 32(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96X heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96X: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96X(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96X(c): amended, on 25 February 2016, by section 32(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96X(c): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

96Y Election by receiving carer or by liable parent to become party or discontinue proceedings

(1)

Any relevant person (see subsection (8)) may elect to become a party to proceedings before the Commissioner under this Part.

(2)

A relevant person may elect to discontinue proceedings in relation to a formula assessment of child support that was or will become payable, except that—

(a)

a receiving carer who was a social security beneficiary during a particular period may not elect to discontinue proceedings in respect of child support that was payable during that period; and

(b)

a receiving carer who is a social security beneficiary may not elect to discontinue proceedings in respect of child support that will become payable.

(3)

If a relevant person makes an election under subsection (1) or (2), the election must be—

(a)

in writing; and

(b)

filed with the Commissioner within 14 days after the date on which the Commissioner sends notification to the relevant person under section 96X.

(4)

The Commissioner must inform the subject parent of any election made by a relevant person under this section as soon as practicable after it is filed with the Commissioner.

(5)

A relevant person may become a party to proceedings under this Part only in accordance with this section.

(6)

If a relevant person makes an election under subsection (2) to discontinue proceedings in relation to formula assessment of child support that was or will become payable, the Commissioner must discontinue the proceedings that relate to formula assessment of that child support in accordance with the election.

(7)

However, if there is more than 1 relevant person, the Commissioner must not discontinue the proceedings unless each relevant person has elected under subsection (2) to discontinue them.

(8)

In this section and sections 96Z and 96ZA, relevant person means—

(a)

a receiving carer who is not the subject parent; or

(b)

a liable parent who is not the subject parent.

Section 96Y: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96Y heading: amended, on 25 February 2016, by section 33(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Y heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96Y(1): amended, on 25 February 2016, by section 33(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Y(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96Y(2): replaced, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96Y(2): amended, on 25 February 2016, by section 33(3) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Y(3): amended, on 25 February 2016, by section 33(4) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Y(3)(b): amended, on 25 February 2016, by section 33(4) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Y(4): amended, on 25 February 2016, by section 33(5) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Y(4): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96Y(5): amended, on 25 February 2016, by section 33(6) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Y(6): amended, on 25 February 2016, by section 33(7) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Y(7): inserted, on 25 February 2016, by section 33(8) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Y(8): inserted, on 25 February 2016, by section 33(8) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

96Z Written representations by parties

(1)

Any party may make written representations as to whether the grounds for a determination under this Part exist.

(2)

Any written representations made by a party in proceedings under this Part must be—

(a)

made to the Commissioner in a manner specified by the Commissioner; and

(b)

filed with the Commissioner,—

(i)

in the case of a subject parent, within 14 days after the date on which the subject parent is sent notification under section 96W; and

(ii)

in the case of a relevant person (see section 96Y(8)), within 14 days after the date on which the relevant person is sent notification under section 96X.

(3)

A subject parent is entitled to receive a copy of any written representations (and any accompanying documentation) that a relevant person provides to the Commissioner under this section.

(4)

A relevant person who elects to become a party in accordance with section 96Y is entitled to receive a copy of any written representations (and any accompanying documentation) that the subject parent provides to the Commissioner under this section if those representations are provided to the Commissioner after the subject parent is sent notification under section 96W.

(5)

For the purposes of this Part, a relevant person is not entitled to any information relating to the subject parent that is in the Commissioner’s possession other than information that came into the Commissioner’s possession in the course of proceedings under this Part after those proceedings are started under section 96V.

Section 96Z: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96Z heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96Z(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96Z(2): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96Z(2)(b)(i): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96Z(2)(b)(ii): replaced, on 25 February 2016, by section 34(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Z(2)(b)(ii): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96Z(3): amended, on 25 February 2016, by section 34(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Z(3): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96Z(4): amended, on 25 February 2016, by section 34(3) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Z(4): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96Z(5): amended, on 25 February 2016, by section 34(4) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 96Z(5): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

96ZA Procedure for making determination

(1)

In making a determination under this Part, the Commissioner—

(a)

may act on the basis of any information in the Commissioner’s possession; and

(b)

may, but (subject to subsection (2)) is not required to, conduct any enquiries or investigations into the matter.

(2)

The Commissioner must give an opportunity to each party to appear before the Commissioner and be heard by him or her, if they so wish.

(3)

Nothing in subsection (2)—

(a)

empowers the Commissioner to compel a party to appear before the Commissioner in the presence of the other party; or

(b)

applies if the Commissioner refuses to make a determination under section 96ZC.

(4)

Despite subsection (2), if a relevant person (see section 96Y(8)) who elects to become a party in accordance with section 96Y fails to file any written representations within the prescribed time, the Commissioner may refuse to hear that person.

(5)

Any hearing before the Commissioner, and any enquiry or investigation carried out by the Commissioner, must be carried out as the Commissioner thinks fit and the Commissioner is not bound by any rules of evidence.

(6)

Nothing in section 125 (which relates to intervention in proceedings) applies to proceedings under this Part.

Section 96ZA: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96ZA(2): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96ZA(4): amended, on 25 February 2016, by section 35 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

96ZB Determinations that may be made

(1)

The Commissioner may make as a determination under this Part any decision that the court could make as an order under section 106(1), and the following provisions apply, with necessary modifications, as if a determination were an order:

(a)

section 98 (which sets the minimum liability in respect of child support):

(b)

section 106(2) to (4) (which relates to the orders that may be made):

(c)

section 107 (which relates to implementation of orders):

(d)

section 119(1)(a) (which relates to cessation of orders).

(2)

The Commissioner must, in writing, give reasons for making the determination (including the reasons why the Commissioner is satisfied, in accordance with section 96R, that a determination should be made) to each party to the proceedings.

(a)
[Repealed]

(b)
[Repealed]

(3)

A contravention of subsection (2) in relation to a determination does not affect the validity of the determination.

Section 96ZB: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96ZB(2): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96ZB(2)(a): repealed, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96ZB(2)(b): repealed, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

96ZC Commissioner may refuse to make determination because issues too complex

(1)

If the Commissioner is satisfied, at any time after starting proceedings under this Part, that the matters in issue are too complex to be dealt with under this Part, the Commissioner may refuse to make the determination without taking any further action under this Part.

(2)

The Commissioner must give each parent and receiving carer affected by the proceedings the reasons, in writing, for refusing to make the determination.

(3)

The Commissioner may recommend that the receiving carer or the liable parent make an application to the court for an order under section 104.

Section 96ZC: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Section 96ZC(2): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 96ZC(3): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

96ZD Effect of pending proceedings under this Part

The fact that the Commissioner has started proceedings under this Part does not suspend, interfere with, or affect—

(a)

any formula assessment made in relation to the liable parent; or

(b)

the obligation to pay child support; or

(c)

the right of the Commissioner to receive and recover child support.

Section 96ZD: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

96ZE Commencement of determinations

The Commissioner may, under this Part, make a determination expressed to be retrospective to any day that the Commissioner considers appropriate, not being a day that precedes the commencement of this section.

Section 96ZE: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

96ZF Restriction on publication of reports of proceedings

(1)

No person may, without the leave of the Commissioner or a Family Court, publish a report of any proceedings under this Part.

(2)

The Commissioner or a Family Court may grant leave under subsection (1) with or without conditions.

(3)

Every person who contravenes subsection (1) commits an offence against this Act and is liable on conviction,—

(a)

in the case of an individual, to imprisonment for a term not exceeding 3 months, or to a fine not exceeding $2,000:

(b)

in the case of a body corporate, to a fine not exceeding $10,000.

(4)

Nothing in this section applies to the publication of any report in any publication that—

(a)

is of a bona fide professional or technical nature; and

(b)

is intended for circulation among members of the legal profession, employees of the Crown, relationship counsellors, mediators, or social workers.

(5)

Nothing in section 81 of the Tax Administration Act 1994 prevents the publication of a report of any proceedings under this Part—

(a)

with the leave of the Commissioner or a Family Court; or

(b)

in accordance with subsection (4).

Section 96ZF: substituted, on 18 May 2009, by section 6 of the Child Support Amendment Act 2008 (2008 No 75).

Section 96ZF(3): amended, on 1 July 2013, by section 413 of the Criminal Procedure Act 2011 (2011 No 81).

96ZG Application of certain provisions in Part 6A to proceedings under this Part

The following provisions of Part 6A apply to proceedings under this Part, with necessary modifications, as if any reference to an application in those sections were a reference to proceedings under this Part:

(a)

section 96J (which relates to circumstances in which representation or assistance at a hearing may be approved):

(b)

section 96K (which relates to the effect of a child support agreement entered into before a determination is made).

Section 96ZG: inserted, on 26 September 2006, by section 24 of the Child Support Amendment Act 2006 (2006 No 42).

Part 7 Jurisdiction of courts in relation to child support and domestic maintenance

Part 7 heading: amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

General provisions relating to jurisdiction

97 Jurisdiction of courts

The Supreme Court, the Court of Appeal, the High Court, District Courts, and Family Courts shall have jurisdiction in proceedings under this Act only where—

(a)

any party to the proceeding resides or is domiciled in New Zealand; or

(b)

any child to whom the proceeding relates resides or is domiciled in New Zealand.

Compare: 1980 No 94 s 4

Section 97: amended, on 1 January 2004, by section 47 of the Supreme Court Act 2003 (2003 No 53).

98 Minimum liability in respect of child support

(1)

An order made under this Part as to the annual rate of child support must not operate in a child support year so as to reduce that rate below,—

(a)

for an appeal on, or other order relating to, a formula assessment or an order under section 109, the minimum annual rate for that year under section 72(1)(a); and

(b)

for all other orders, $520.

(2)

Subsection (2A) applies when—

(a)

an order would, but for this section, operate in a child support year so as to reduce the annual rate of child support payable under a formula assessment below the minimum annual rate for that year under section 72(1)(a); and

(b)

the child support payable is payable under the formula assessment in respect of more than 1 receiving carer.

(2A)

When this subsection applies, the annual rate of child support payable in the child support year to each receiving carer is the minimum annual rate under section 72(1)(a) divided between the receiving carers on the basis of the number of the liable parent’s qualifying children in respect of whom a formula assessment applies that each receiving carer provides care for.

(3)

Subsection (2A) applies notwithstanding—

(a)

that the annual rate of child support payable in respect of a child to whom the order relates is greater than the rate provided for by the order:

(b)

that the annual rate of child support payable in respect of a child to whom the order does not relate is greater than the rate which would have been payable if the order had not been made.

Section 98(1): substituted, on 7 November 2001, by section 5(2) of the Child Support Amendment Act 2001 (2001 No 90).

Section 98(2): replaced, on 1 April 2015, by section 213(1) of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

Section 98(2A): inserted, on 1 April 2015, by section 213(1) of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

Section 98(2A): amended, on 25 February 2016, by section 36 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 98(3): amended, on 1 April 2015, by section 213(2) of the Taxation (Annual Rates, Employee Allowances, and Remedial Matters) Act 2014 (2014 No 39).

99 Declarations in respect of step-parents

(1)

A parent or carer of a child may apply to a Family Court for a declaration that a specified person is a step-parent of the child.

(2)

Any person who wishes to be declared to be a step-parent of a child for the purposes of this Act may apply to a Family Court for a declaration to that effect.

(3)

Subject to section 125, the parties to the proceeding are—

(a)

the applicant for the declaration under this section; and

(b)

the person whom the application seeks to be declared to be a step-parent of the child (if that person is not the applicant); and

(c)

any other person who is a parent or carer of the child when the application is made.

(4)

In determining whether to grant a declaration that a person is a step-parent of a child, the court shall have regard to the following circumstances:

(a)

the extent (if at all) to which that person has assumed responsibility for the maintenance of the child, and the basis on which that person assumed that responsibility, and the length of time during which that person has discharged that responsibility; and

(b)

whether that person assumed or discharged any responsibility for maintenance of the child knowing that that person was not the natural parent of the child; and

(c)

the liability of any other person to maintain the child; and

(d)

whether or not that person was ever living with a parent of the child in a marriage, civil union or de facto relationship; and

(e)

whether that person has at any time been a guardian of the child.

(5)

For the purposes of subsection (4)(a), a person shall not be taken to have assumed responsibility for the maintenance of a child by reason only of meeting the child maintenance liabilities of another person who is wholly or partially maintained by him or her.

(6)

When a Family Court makes a declaration under this section, the Commissioner shall, as soon as is practicable, take such action (if any) as is necessary to give effect to the decision.

Section 99(1): amended, on 25 February 2016, by section 37(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 99(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 99(3): replaced, on 25 February 2016, by section 37(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 99(4)(d): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Appeals from decisions of Commissioner in respect of objections under Part 6

100 Appeal by person from whom formula assessment of child support sought
[Repealed]

Section 100: repealed, on 1 April 2015, by section 24 of the Child Support Amendment Act 2013 (2013 No 12).

101 Appeal by unsuccessful applicant for formula assessment
[Repealed]

Section 101: repealed, on 1 April 2015, by section 24 of the Child Support Amendment Act 2013 (2013 No 12).

102 Appeals against decisions of Commissioner

(1)

Where the Commissioner disallows an objection made under section 90, the objector may appeal to a Family Court against that decision.

(2)

The appeal must be lodged within 2 months after the date upon which notice of disallowance of the objection is given to the objector by or on behalf of the Commissioner.

(3)

Subject to section 125, the parties to the appeal are the objector and the Commissioner.

(4)

A court hearing such an appeal may make such order as it considers appropriate in relation to the decision to which the appeal relates, including an order confirming or varying the decision.

(5)

When an order is made by a court under this section, the Commissioner shall, as soon as practicable, take such action as is necessary to give effect to the decision (whether by amending any assessment or otherwise).

Compare: Child Support (Assessment) Act 1989 s 132 (Aust)

Section 102 heading: amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 102(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 102(3): replaced, on 25 February 2016, by section 38 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

103 Appeals against assessments

(1)

Where the Commissioner disallows in whole or in part an objection made under section 91 to an assessment, the objector may appeal to a Family Court against the assessment.

(2)

The appeal must be lodged within 2 months after the date upon which notice of disallowance of the objection is given to the objector by or on behalf of the Commissioner.

(3)

Subject to section 125, the parties to the appeal are the objector and the Commissioner.

(4)

A Family Court hearing an appeal under this section shall make such order correcting the assessment to which the appeal relates as the circumstances require.

(5)

When a Family Court makes an order under this section, the Commissioner shall, as soon as practicable, take such action as is necessary to give effect to the decision (whether by amending the assessment or otherwise).

(6)

In subsequently making any assessment in relation to a person affected by the assessment that was objected to, the Commissioner shall act on the basis of the decision of the court to the extent to which it is applicable.

Compare: Child Support (Assessment) Act 1989 ss 110, 111 (Aust)

Section 103(1): amended, on 25 February 2016, by section 39(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 103(3): replaced, on 25 February 2016, by section 39(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 103(6): amended, on 25 February 2016, by section 39(3) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Appeals in relation to determinations

Heading: inserted, on 26 September 2006, by section 25 of the Child Support Amendment Act 2006 (2006 No 42).

103A Appeal in relation to determination or decision under subpart 3 of Part 5A

(1)

A payee or a liable person may appeal to a Family Court against—

(a)

a determination made by the Commissioner under subpart 3 of Part 5A; or

(b)

a decision made under that subpart to refuse to make a determination.

(2)

An appeal under this section must be lodged within—

(a)

2 months after the date on which the determination or decision is made; or

(b)

any further time that a Family Court may allow on application made before or after the expiration of that period.

(3)

The parties to an appeal are—

(a)

the appellant; and

(b)

the other party to the proceedings before the Commissioner resulting in the determination or decision; and

(c)

the Commissioner.

(4)

An appeal under this section is by way of rehearing.

Section 103A: inserted, on 26 September 2006, by section 25 of the Child Support Amendment Act 2006 (2006 No 42).

103B Appeal by respondent from determination under Part 6A

(1)

A receiving carer may appeal to a Family Court against a determination made by the Commissioner under Part 6A if the receiving carer is not the person who made the application for the determination under section 96B.

(2)

A liable parent may appeal to a Family Court against a determination made by the Commissioner under Part 6A if the liable parent is not the person who made the application for the determination under section 96B.

(3)

An appeal under this section must be lodged within—

(a)

2 months after the date on which the determination is made; or

(b)

any further time that a Family Court may allow on application made before or after the expiration of that period.

(4)

The parties to an appeal are, subject to section 125,—

(a)

the appellant; and

(b)

any other party to the proceedings under Part 6A.

(5)

An appeal under this section is by way of rehearing.

Section 103B: inserted, on 26 September 2006, by section 25 of the Child Support Amendment Act 2006 (2006 No 42).

Section 103B(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 103B(4)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

103C Appeal from determination under Part 6B

(1)

Any party referred to in section 96Q(2) may appeal to a Family Court against a determination made by the Commissioner under Part 6B.

(2)

An appeal under this section must be lodged within—

(a)

2 months after the date on which the determination is made; or

(b)

any further time that a Family Court may allow on application made before or after the expiration of that period.

(3)

The parties to an appeal are—

(a)

the appellant; and

(b)

any other party to the proceedings before the Commissioner resulting in the determination; and

(c)

the Commissioner.

(4)

An appeal under this section is by way of rehearing.

Section 103C: inserted, on 26 September 2006, by section 25 of the Child Support Amendment Act 2006 (2006 No 42).

Section 103C(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 103C(3)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

103D Powers of Family Court on appeal

(1)

In determining an appeal under any of sections 103A to 103C, a Family Court may—

(a)

confirm, modify, or reverse any determination or decision appealed against (in whole or in part):

(b)

make any decision that the Commissioner could have made in respect of the determination or decision appealed against:

(c)

exercise any of the powers that could have been exercised by the Commissioner.

(2)

Without limiting subsection (1),—

(a)

in reversing a decision or part of a decision, a Family Court may make an order that the provisions of this Act relating to the formula assessment of child support should not be departed from:

(b)

in reversing a decision made under subpart 3 of Part 5A to refuse to make a determination, a Family Court may exercise any of the powers that could have been exercised by the Commissioner to make a determination under that subpart.

(3)

An order under this section may make different provision in relation to different child support years and in relation to different parts of a child support year.

(4)

Subject to section 98(2), an order made under this section does not operate so as to increase or reduce the amount of child support payable in relation to any child to whom the order does not apply, and the child support payable in relation to any child to whom the order does not apply must be calculated as if the order had not been made.

(5)

Every order made under this section must specify the period of time in which the order is to apply or specify the event the occurrence of which will cause the order to terminate.

Section 103D: inserted, on 26 September 2006, by section 25 of the Child Support Amendment Act 2006 (2006 No 42).

103E Implementation of orders

(1)

When a decision of a Family Court making an order in determination of an appeal under section 103D becomes final, the Commissioner must, as soon as practicable, take the action necessary to give effect to the decision in relation to any—

(a)

formula assessment that has been made in relation to the child, the receiving carer, and the liable parent concerned (whether by amending the assessment or otherwise); or

(b)

exemption granted under this Act in relation to the payee and the liable person concerned (whether by amending an assessment or otherwise).

(2)

Subject to subsection (3), in subsequently making an assessment in relation to the child, the payee, and the liable person concerned while the order is in force, the Commissioner must act on the basis of the provisions of this Act as modified by the order.

(3)

Despite subsection (2), if the Commissioner becomes aware of a change in circumstances which, had that change occurred before the making of that order, could reasonably be expected to have resulted in the order being different from that which was made, the Commissioner may—

(a)

amend an existing formula assessment in relation to the child, the receiving carer, and the liable parent concerned to reflect that change in any manner that the Commissioner considers appropriate; or

(b)

in subsequently making a formula assessment in relation to the child, the receiving carer, and the liable parent concerned while the order is in force, act on the basis of the provisions of this Act as modified to reflect the tenor of the order and the change in circumstances that has occurred since the order was made.

Section 103E: inserted, on 26 September 2006, by section 25 of the Child Support Amendment Act 2006 (2006 No 42).

Section 103E(1)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 103E(3)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 103E(3)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Orders for departure from formula assessment in special circumstances

104 Application for departure from formula assessment in special circumstances

(1)

A receiving carer or a liable parent may apply to a Family Court for an order that all or some of the provisions of this Act relating to the formula assessment of child support be departed from in relation to a child.

(2)

An application may be made only if—

(a)

a formula assessment is in force in relation to the child, the receiving carer, and the liable parent concerned; and

(b)

either—

(i)

the Commissioner has made a determination under Part 6A in relation to the matter and the person who applies under this section is the person who applied for that determination; or

(ii)

the Commissioner has refused to make a determination under Part 6A in relation to the matter; or

(iia)

the Commissioner has refused to make a determination under Part 6B in relation to the matter after having commenced proceedings under that Part; or

(iii)

the receiving carer or the liable parent are parties to another application pending in a Family Court and the court is satisfied that it would be appropriate for the court to consider an application made under this section at the same time as it hears the other application; or

(iv)

the application relates, wholly or in part, to child support payable in the child support year ending on 31 March 1994 or any earlier child support year.

(3)

Subject to section 125, the parties to the application are the liable parent and the receiving carer.

(4)

Subject to section 117, the fact that an application is made by any person under this section does not suspend, interfere with, or affect—

(a)

any formula assessment made in relation to the person; or

(b)

the obligation to pay child support; or

(c)

the right of the Commissioner to receive and recover any child support.

Section 104(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 104(2): substituted (with effect on 1 July 1994), on 15 July 1994, by section 6(1) of the Child Support Amendment Act 1994 (1994 No 74).

Section 104(2)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 104(2)(b)(i): amended, on 26 September 2006, by section 26(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 104(2)(b)(ii): amended, on 26 September 2006, by section 26(2) of the Child Support Amendment Act 2006 (2006 No 42).

Section 104(2)(b)(iia): inserted, on 26 September 2006, by section 26(3) of the Child Support Amendment Act 2006 (2006 No 42).

Section 104(2)(b)(iii): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 104(3): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

105 Matters as to which court must be satisfied before making order

(1)

Where an application is made to a Family Court under section 104 for an order in relation to a child and the court is satisfied that—

(a)

1 or more of the grounds for departure mentioned in subsection (2) exists or exist; and

(b)

it would be—

(i)

just and equitable as regards the child, the receiving carer, and the liable parent; and

(ii)

otherwise proper,—

to make a particular order of the type specified in section 106,—

the court may make the order.

(2)

For the purposes of subsection (1)(a), the grounds for departure are as follows:

(a)

that, by virtue of special circumstances, the capacity of either parent to provide financial support for the child is significantly reduced because of—

(i)

the duty of the parent to maintain any other child or another person; or

(ii)

special needs of any other child or another person that the parent has a duty to maintain; or

(iii)

commitments of the parent necessary to enable the parent to support—

(A)

himself or herself; or

(B)

any other child or another person whom the parent has a duty to maintain; or

(b)

that, in the special circumstances of the case, the costs of maintaining the child are significantly affected because—

(i)

of high costs incurred by a parent or a receiving carer in enabling a parent or receiving carer to have contact with the child; or

(ii)

of special needs of the child; or

(iii)

the child is being cared for, educated, or trained in the manner that was expected by either of his or her parents; or

(c)

that, by virtue of special circumstances, application in relation to the child of the provisions of this Act relating to formula assessment of child support would result in an unjust and inequitable determination of the level of financial support to be provided by the liable parent for the child because of—

(i)

the income, earning capacity, property, and financial resources of either parent or the child; or

(ii)

any payments, and any transfer or settlement of property, previously made (whether under this Act, the Property (Relationships) Act 1976 or otherwise) by the liable parent or a receiving carer to the child, to a liable parent or a receiving carer, or to any other person for the benefit of the child; or

(iii)

an entitlement of the liable parent or receiving carer to the continued occupancy of a property in which the liable parent or receiving carer has a financial interest; or.

Re-establishment costs situation if income increases

(d)

that the application in relation to the child of the provisions of this Act relating to formula assessment of child support would result in an unjust and inequitable determination of the level of child support to be provided by the liable parent for the child in respect of a child support year because—

(i)

the adjusted taxable income of a parent of the child for the child support year includes income from relevant additional work (see subsections (3A) to (3C)); and

(ii)

some or all of the income from relevant additional work has been used, or will be used, by the parent to meet, wholly or partly, actual and reasonable costs incurred to re-establish himself or herself, and any child or other person that he or she has a duty to maintain, after the child’s parents ceased to live together in a marriage, civil union, or de facto relationship; or

Offsetting of liabilities situation

(e)

that it would be just and equitable to offset one liability against another, if 2 persons are each liable to pay in respect of the other an amount of child support under a formula assessment (whether or not those amounts have become due and payable).

(3)

For the purposes of subsection (2)(b)(i), costs incurred in enabling a parent or receiving carer to have contact with the child are not to be taken to be high unless the total of those costs during a child support year is more than 5% of the adjusted taxable income for the year of the person incurring the costs.

(3A)

In subsection (2)(d), relevant additional work means work done by the parent during the relevant 3-year period that, in quantity or nature or both, is additional to work that he or she did before the child’s parents ceased to live together in a marriage, civil union, or de facto relationship.

(3B)

In subsection (3A), the relevant 3-year period means the 3-year period starting on the date on which the child’s parents ceased to live together in a marriage, civil union, or de facto relationship.

(3C)

For the purpose of calculating that 3-year period, the court may exclude a period or periods of resumed cohabitation with, or each with, the sole or main motive of reconciliation if that period does not exceed, or those periods in aggregate do not exceed, 3 months.

(3D)

The ground in subsection (2)(d) applies only in relation to child support in respect of the child support year starting on 1 April 2016 or a later child support year.

(4)

In determining whether it would be just and equitable as regards the child, a receiving carer, and the liable parent to make a particular order of the type specified in section 106, the court shall have regard to—

(a)

the objects of this Act, and, in particular, the nature of the duty of a parent to maintain a child and the fact that it is the parents of a child themselves who have the primary duty to maintain the child; and

(b)

the proper needs of the child, having regard to—

(i)

the manner in which the child is being, and in which the parents expect the child to be, cared for, educated, or trained; and

(ii)

any special needs of the child; and

(c)

the income, earning capacity, property, and financial resources of the child; and

(d)

the income, earning capacity, property, and financial resources of each parent who is a party to the proceeding; and

(e)

the commitments of each parent who is a party to the proceeding that are necessary to enable the parent to support—

(i)

himself or herself; or

(ii)

any other child or another person that the parent has a duty to maintain; and

(f)

the direct and indirect costs incurred by the receiving carer in providing care for the child, including the income and earning capacity foregone by the receiving carer in providing that care; and

(g)

any hardship that would be caused to—

(i)

the child or the receiving carer by the making of, or the refusal to make, the order; or

(ii)

the liable parent, or any other child or another person that the liable parent has a duty to support, by the making of, or the refusal to make, the order.

(5)

In having regard to the income, earning capacity, property, and financial resources of the child or a parent of the child, the court must—

(a)

have regard to the capacity of the child or parent to earn or derive income, including having regard to any assets of, under the control of, or held for the benefit of, the child or parent that do not produce, but are capable of producing, income; and

(b)

disregard the income, earning capacity, property, and financial resources of any person who does not have a duty to maintain the child, or who has such a duty but is not a party to the proceeding, unless, in the special circumstances of the case, the court considers that it is appropriate to have regard to them.

(6)

The court may have regard to other matters beyond those specified in subsections (4) and (5).

Compare: Child Support (Assessment) Act 1989 s 117 (Aust)

Section 105(1)(b)(i): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 105(2)(b)(i): replaced, on 1 April 2015, by section 25(1) of the Child Support Amendment Act 2013 (2013 No 12).

Section 105(2)(c)(ii): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 105(2)(c)(ii): amended, on 1 February 2002, by section 64(2) of the Property (Relationships) Amendment Act 2001 (2001 No 5).

Section 105(2)(c)(iii): amended, on 25 February 2016, by section 40(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 105(2)(c)(iii): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 105(2)(d) heading: inserted, on 25 February 2016, by section 40(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 105(2)(d): inserted, on 25 February 2016, by section 40(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 105(2)(d)(ii): amended, on 1 April 2016, by section 40(3) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 105(2)(e) heading: inserted, on 1 April 2016, by section 40(4) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 105(2)(e): inserted, on 1 April 2016, by section 40(4) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 105(3): replaced, on 1 April 2015, by section 25(2) of the Child Support Amendment Act 2013 (2013 No 12).

Section 105(3A): inserted, on 25 February 2016, by section 40(5) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 105(3B): inserted, on 25 February 2016, by section 40(5) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 105(3C): inserted, on 25 February 2016, by section 40(5) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 105(3D): inserted, on 25 February 2016, by section 40(5) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Section 105(4): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 105(4)(f): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 105(4)(g)(i): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

106 Orders that may be made

(1)

In determining an application made under section 104, a court may make any of the following orders:

(a)

an order departing from some or all of the provisions of this Act by substituting a different amount for any of the following amounts as they relate to a formula assessment, or prescribing an amount or a percentage by which any of those amounts must be varied:

(i)

a person’s adjusted taxable income:

(ii)

a person’s living allowance:

(iii)

a person’s dependent child allowance:

(iv)

a person’s child support income amount:

(v)

the child expenditure amount applying in respect of a qualifying child:

(b)

an order departing from some or all of the provisions of this Act relating to the formula assessment of child support in relation to the child and, as a result,—

(i)

substituting a different annual amount of child support payable by a liable parent in place of the amount determined under a formula assessment; or

(ii)

prescribing an amount or a percentage by which the annual amount of child support payable by a liable parent must vary from the amount determined under a formula assessment:

(c)

an order that the provisions of this Act relating to a formula assessment of child support must not be departed from in relation to a particular child.

(2)

An order under this section may make different provision in relation to different child support years and in relation to different parts of a child support year.

(3)

Subject to section 98(2), an order made under this section shall not operate so as to increase or reduce the amount of child support payable in relation to any child to whom the order does not apply, and the child support payable in relation to any such other child shall be calculated as if the order had not been made.

(4)

Every order made under this section shall specify the period of time in which the order is to apply or specify the event the occurrence of which will cause the order to terminate.

Compare: Child Support (Assessment) Act 1989 s 118 (Aust)

Section 106(1): replaced, on 1 April 2015, by section 26 of the Child Support Amendment Act 2013 (2013 No 12).

106A Further provision on orders for re-establishment costs situations if income increases

The amount that an order under section 106 on the ground in section 105(2)(d) excludes, or in effect excludes, from the parent’s adjusted taxable income is not to exceed the lesser of the following:

(a)

so much of the income from relevant additional work as has been used, or will be used, by the parent as referred to in section 105(2)(d)(ii):

(b)

30% of the parent’s adjusted taxable income.

Section 106A: inserted, on 25 February 2016, by section 41(1) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

106B Further provision on orders for offsetting of liabilities situations

(1)

An order under section 106 on the ground in section 105(2)(e) may provide for the offsetting of liabilities in cases involving all or any of the following:

(a)

liabilities in respect of the 2 persons caring at different times for the same child:

(b)

liabilities in respect of the 2 persons caring at the same time for 2 or more different children:

(c)

liabilities in respect of different child support years:

(d)

liabilities in respect of child support years ending before 1 April 2016 (that is, the date of commencement of this section and section 105(2)(e)):

(e)

liabilities under different formula assessments.

(2)

Subsection (1) does not limit section 105(2)(e).

(3)

An order under section 106 on the ground in section 105(2)(e) may not apply in respect of—

(a)

any liability of a person in respect of a period if during that period the other person is expected to be, or (as the case requires) was, a social security beneficiary; or

(b)

a penalty payable under section 134.

(4)

Subsection (5) applies to an order under section 106 on the ground in section 105(2)(e) if the liability of 1 of the persons in respect of the other to pay child support in respect of a particular month under 1 or more formula assessments (the relevant liability)—

(a)

has been offset to any extent under section 152B; or

(b)

has been reduced to any extent by virtue of section 34 or 35 as in force before 1 April 2015 (including as applied on and after that date by clause 1A of Schedule 1), if the relevant liability is in respect of a month before April 2015.

(5)

The order may not apply in respect of the relevant liability to any extent.

(6)

In relation to a liability in respect of a child support year ending before 1 April 2015, any order on the ground in section 105(2)(e) is to be made under section 106 as in force before that date in accordance with clause 1A of Schedule 1 and the orders that may be made include an order varying the annual rate of child support payable by a parent in respect of that child support year.

(7)

An order under section 106 on the ground in section 105(2)(e) may be made only on an application made on or after 1 April 2016.

Section 106B: inserted, on 1 April 2016, by section 41(2) of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

107 Implementation of orders

(1)

When a decision of a court making an order in determination of an application under section 104 becomes final, the Commissioner shall, as soon as practicable, take such action as is necessary to give effect to the decision in relation to any formula assessment that has been made in relation to the child, the receiving carer, and the liable parent concerned (whether by amending the assessment or otherwise).

(2)

Subject to subsection (3), in subsequently making a formula assessment in relation to the child, the receiving carer, and the liable parent concerned while the order is in force, the Commissioner shall act on the basis of the provisions of this Act as modified by the order.

(3)

Notwithstanding subsection (2), where the Commissioner becomes aware of a change in circumstances which, had that change occurred prior to the making of that order, could reasonably be expected to have resulted in the order being different from that which was made, the Commissioner may—

(a)

amend an existing formula assessment in relation to the child, the receiving carer, and the liable parent concerned to reflect that change in such manner as the Commissioner considers appropriate; or

(b)

in subsequently making a formula assessment in relation to the child, the receiving carer, and the liable parent concerned while the order is in force, act on the basis of the provisions of this Act as modified to reflect the tenor of the order and the change in circumstances that has occurred since the order was made.

(4)

Without limiting subsections (1) to (3), the Commissioner may, in taking action under any of those subsections, apply some or all of the provisions of this Act relating to the amount of child support payable in relation to a receiving carer under a formula assessment (for example, sections 36A to 36C) with the modifications the Commissioner considers necessary to achieve fully the intention of the court’s order.

Compare: Child Support (Assessment) Act 1989 s 119 (Aust)

Section 107(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 107(2): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 107(3)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 107(3)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 107(4): inserted, on 25 February 2016, by section 42 of the Taxation (Annual Rates for 2015–16, Research and Development, and Remedial Matters) Act 2016 (2016 No 1).

Orders for provision of child support in form of lump sum

108 Application for order for provision of child support in form of lump sum

(1)

Where a receiving carer wants a liable parent to provide, or a liable parent wants to provide, child support for a child otherwise than in the form of periodic amounts paid to the receiving carer, the receiving carer or the liable parent may apply to a Family Court for an order that the liable parent provide child support for the child otherwise than in the form of periodic amounts paid to the receiving carer.

(2)

An application—

(a)

may be made only if a formula assessment is in force in relation to the child, the receiving carer, and the liable parent; and

(b)

may be made by the receiving carer or the liable parent.

(3)

A Family Court may not hear the application until the following applications, proceedings, or appeals that are still pending have been heard and determined:

(a)

an application to the Commissioner under subpart 3 of Part 5A:

(b)

an application to the Commissioner under section 96B:

(c)

proceedings started by the Commissioner under section 96V:

(d)

an application to the court under section 104:

(e)

an appeal under any of sections 103A to 103C.

(4)

Subject to section 125, the parties to the application are the receiving carer and the liable parent.

Compare: Child Support (Assessment) Act 1989 ss 122, 123 (Aust)

Section 108(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 108(2)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 108(2)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 108(3): substituted, on 26 September 2006, by section 27 of the Child Support Amendment Act 2006 (2006 No 42).

Section 108(4): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

109 Orders for provision of child support in form of lump sum

(1)

Where a receiving carer or a liable parent makes an application to a Family Court under section 108 and the court is satisfied that it would be—

(a)

just and equitable as regards the child, the receiving carer, and the liable parent; and

(b)

otherwise proper,—

to make an order that the liable parent pay a lump sum towards the support of the child, the court may make the order.

(2)

The Family Court may make either one, or both, of the following orders under this section:

(a)

an order directing the respondent to pay such lump sum towards the future support of the child as the court thinks fit:

(b)

an order directing the respondent to pay such lump sum towards the past support of the child as the court thinks fit.

(3)

In determining the application, the court must have regard to—

(a)

the formula assessment in force in relation to the child, the receiving carer, and the liable parent; and

(aa)

any determination in force under Part 5A, or 6A, or 6B in relation to the child, the receiving carer, and the liable parent; and

(b)

any order in force under section 106 in relation to the child, the receiving carer, and the liable parent; and

(c)

the matters mentioned in section 105(4) and (5); and

(d)

the relationship between any lump sum order and any liability to pay child support under a formula assessment, as determined in accordance with section 110.

(4)

The court may have regard to other matters beyond those specified in subsection (3).

(5)

The Commissioner shall, as soon as practicable, take such action as is necessary to give effect to any order made under this section.

Compare: Child Support (Assessment) Act 1989 s 124 (Aust)

Section 109(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 109(1)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 109(3)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 109(3)(aa): inserted (with effect on 1 July 1994), on 15 July 1994, by section 6(1) of the Child Support Amendment Act 1994 (1994 No 74).

Section 109(3)(aa): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 109(3)(aa): amended, on 26 September 2006, by section 28 of the Child Support Amendment Act 2006 (2006 No 42).

Section 109(3)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

110 Relationship between lump sum orders and assessed child support

(1)

Where—

(a)

a liable parent is liable to provide child support to a receiving carer in respect of a child under a lump sum order made under section 109; and

(b)

the liable parent is also liable to pay child support to that receiving carer in respect of that child under a formula assessment,—

the court shall provide that the liable parent’s liability to provide child support under the lump sum order shall be credited against his or her liability to pay child support under the formula assessment for any period to which the lump sum order relates unless the court is satisfied that, in the special circumstances of the case, it would be—

(c)

just and equitable as regards the child, the liable parent, and the receiving carer; and

(d)

otherwise proper,—

that the child support should not be so credited.

(2)

The court shall state in the lump sum order whether or not any such credit has been given.

(3)

If the court states in the order that the child support is to be credited against the liable parent’s liability under any relevant formula assessment, the court must also state in the order either—

(a)

that the child support has an annual value of a specified amount and that the annual rate of the child support payable under any relevant formula assessment is to be reduced by that amount (but not in a child support year below the minimum annual rate for that year under section 72(1)(a)); or

(b)

that the child support is to count for a specified percentage of the annual rate of child support payable under any relevant formula assessment.

(4)

The court may, under subsections (1) and (3), make different provision in relation to different child support years and in relation to different parts of a child support year.

(5)

In making a determination under subsection (1)(d), the court must have regard to the matters mentioned in section 105(4) and (5).

(6)

The court may have regard to other matters beyond those specified in subsection (5).

(7)

Subject to section 98(2), an order made under this section shall not operate so as to increase or reduce the amount of child support payable in relation to any child to whom the order does not apply, and the child support payable in relation to any such other child shall be calculated as if the order had not been made.

Compare: Child Support (Assessment) Act 1989 s 125 (Aust)

Section 110(1)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 110(1)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 110(1)(c): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 110(3)(a): amended, on 7 November 2001, by section 5(2) of the Child Support Amendment Act 2001 (2001 No 90).

111 Effect of lump sum orders on formula assessment of child support

(1)

If a Family Court makes an order under section 109 that includes a statement that the child support ordered to be provided by the liable parent is to be credited against the liable parent’s liability under any relevant formula assessment, when the decision of the court making the order becomes final, the Commissioner shall, as soon as practicable, take such action as is necessary to give effect to the order in relation to any relevant formula assessment that has been made (whether by amending the assessment or otherwise).

(2)

In subsequently making a relevant formula assessment, the Commissioner shall—

(a)

calculate what would, apart from the application of the order, be the annual rate of child support payable by the liable parent to the receiving carer entitled to child support; and

(b)

reduce that annual rate by the amount or percentage specified in the statement included in the order under section 110(3); and

(c)

make the assessment on the basis of that reduced annual rate.

Compare: Child Support (Assessment) Act 1989 s 127 (Aust)

Section 111(2)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Discharge, suspension, revival, and variation of orders

112 Discharge, suspension, revival, and variation of orders

(1)

A receiving carer or a liable parent or the Commissioner may apply to a Family Court for an order to discharge, suspend, revive, or vary any order made by a Family Court under section 103D or section 106 or section 109.

(2)

If an order under section 103D or section 106 or section 109 is in force in relation to a child (whether or not all things ordered to be done by the order have been done), a Family Court may, on receipt of an application made under subsection (1) or where it is satisfied that it ought to do so, by order—

(a)

discharge the order; or

(b)

suspend its operation wholly or in part and either until a further order or until a fixed time or the happening of a future event; or

(c)

if the operation of the order has been suspended under paragraph (b), revive its operation wholly or in part; or

(d)

subject to subsection (3), vary the order (including any statement included in the order under section 110) in any way, but not—

(i)

in a way that is inconsistent with the provisions of the section under which the order was made; or

(ii)

so as to reduce the liability of any person to pay child support in a child support year below the equivalent of an annual rate that is equal to the minimum annual rate for that year under section 72(1)(a).

(3)

The court shall not discharge, suspend, revive, or vary an order under subsection (1) unless the court is satisfied, having regard in particular to any statement included in the order under section 110, that it would be—

(a)

just and equitable as regards the child, the receiving carer, and the liable parent concerned; and

(b)

otherwise proper,—

to make the order.

(4)

The court shall not, by any order under this section, vary an order unless it is also satisfied—

(a)

that making the variation is justified because of a change in the circumstances of the child, the receiving carer, or a liable parent concerned since the order was made or last varied; or

(b)

that making the variation is justified because of a change in the all groups index number of the New Zealand Consumer Price Index since the order was made or last varied; or

(c)

in a case where the order was made by consent, that the order is not proper or adequate; or

(d)

that material facts were withheld from the court that made the order or from a court that varied the order, or that material evidence previously given before such a court was false.

(5)

If the court proposes to vary the order otherwise than by varying any statement included in the order under section 110, the court must consider whether, having regard to the proposed variation, it should also order the variation of any such statement.

(6)

In determining whether to make an order under this section, the court must have regard to the matters mentioned in section 105(4) and (5).

(7)

The court may have regard to other matters beyond those specified in subsection (6).

(8)

The court must not, in considering the variation of an order, have regard to a change in the all groups index number of the New Zealand Consumer Price Index unless at least 12 months have elapsed since the order was made, or was last varied having regard to such a change.

(9)

In satisfying itself for the purposes of subsection (4)(c), the court must have regard to any payments, and any transfer or settlement of property, previously made by the liable parent to the child, to the receiving carer, or to any other person for the benefit of the child.

(10)

The discharge of an order does not affect the recovery of arrears due under the order, or under this Act, when the discharge takes effect.

Compare: Child Support (Assessment) Act 1989 s 129 (Aust)

Section 112(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 112(1): amended, on 26 September 2006, by section 29(1) of the Child Support Amendment Act 2006 (2006 No 42).

Section 112(2): amended, on 26 September 2006, by section 29(2) of the Child Support Amendment Act 2006 (2006 No 42).

Section 112(2)(d)(ii): substituted, on 7 November 2001, by section 5(2) of the Child Support Amendment Act 2001 (2001 No 90).

Section 112(3)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 112(4)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 112(9): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Orders to set aside voluntary agreements

113 Power to set aside agreements

(1)

A Family Court may set aside a voluntary agreement if the court is satisfied, on application by a party to the agreement, that the concurrence of the party was obtained by fraud or undue influence or that the party was influenced in his or her decision to enter into the agreement by a mistake that was material to him or her.

(2)

Subject to section 125, the parties to a proceeding under subsection (1) of this section are the parties to the agreement.

(3)

Where a voluntary agreement is set aside under subsection (1), a Family Court may make such orders as it considers just and equitable for the purpose of preserving or adjusting the rights of the party concerned or, as the case may be, the child concerned or a person who is or was a receiving carer, or a liable parent, in relation to the child.

(4)

An order under subsection (3) may be made in the proceedings in which the order is set aside or in other proceedings brought on the application of a person who is or was a receiving carer, or a liable parent, in relation to the child concerned.

(5)

The Commissioner shall, as soon as practicable, take such action as is necessary to give effect to the order.

Compare: Child Support (Assessment) Act 1989 ss 136, 137 (Aust)

Section 113(3): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 113(3): amended, on 26 April 2005, by section 3 of the Child Support Amendment Act 2005 (2005 No 6).

Section 113(4): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

114 Implementation of decision

The Commissioner shall, as soon as practicable, take such action as is necessary to give effect to any decision made under section 113 or any order made under subsection (3) of that section (whether by amending any assessment or otherwise).

Compare: Child Support (Assessment) Act 1989 s 138 (Aust)

Effect of pending appeals

115 Pending appeal or application not to affect assessment

(1)

Subject to section 117, the fact that a proceeding is pending in relation to an appeal made by any person under section 102 or section 103, 103A, 103B, or 103C, or in relation to an application made by any person under section 104 or section 108 or section 112 or section 117, does not suspend, interfere with, or affect—

(a)

any assessment made in relation to the person; or

(b)

the obligation to pay financial support; or

(c)

the right of the Commissioner to receive and recover any financial support.

(2)

Subsection (1) does not apply in relation to a person if—

(a)

the person has made an appeal under section 102 in relation to a child; and

(b)

a ground of the appeal is that the person was not a parent of the child; and

(c)

there is not a final decision of a court determining that ground of the appeal.

Compare: Child Support (Assessment) Act 1989 s 135 (Aust)

Section 115(1): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 115(1): amended, 26 September 2006, by section 30 of the Child Support Amendment Act 2006 (2006 No 42).

Section 115(2)(a): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Urgent maintenance orders and suspension orders

116 Urgent maintenance orders

(1)

Where, at any time after an application has been made to the Commissioner for formula assessment of child support for a child (whether or not the Commissioner has accepted or refused to accept the application), a Family Court is of the opinion that the child is in urgent need of financial assistance, the court may order the payment of such periodic or other amount towards the maintenance of the child as the court considers appropriate.

(2)

An order under subsection (1) has effect for such period as is specified in the order, other than a period that ends after—

(a)

the final determination under this Act that child support is not payable for the child; or

(b)

if a determination is made under this Act that child support is payable for the child, the receipt by the carer of, or on account of, the first payment of such child support.

(3)

A proceeding under this section may be instituted by a carer who has applied for formula assessment of child support (other than a carer who is a social security beneficiary), against the person from whom the application sought payment of child support.

(4)

The Commissioner shall, as soon as practicable, take such action as is necessary to give effect to any order made under this section.

Compare: Child Support (Assessment) Act 1989 s 139 (Aust)

Section 116(2)(b): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

Section 116(3): amended, on 1 April 2015, by section 34 of the Child Support Amendment Act 2013 (2013 No 12).

117 Suspension orders

(1)

Where a proceeding has been instituted in a Family Court or an objection has been made under Part 6, a party to the proceeding may apply to the court for an order under this section.

(2)

If the court considers that it is desirable to do so taking into account the interests of the persons who may be affected by the outcome of the proceeding, the court may make such order suspending or altering the liability of any person to make payments under this Act as the court considers appropriate pending the hearing and final determination of the proceeding.

(3)

The court may, by order, vary or revoke an order made under subsection (2).

(4)

An order under subsection (2)—

(a)

is subject to such terms and conditions as are specified in the order; and

(b)